Karnataka High Court
K. Nanjunda Swamy And Another vs State Of Karnataka And Others on 3 June, 1998
Equivalent citations: 1999(4)KARLJ82
ORDER
1. This Court by order dated May 30, 1997 (K. Nanjunda Swamy and Others v State of Karnataka and Others), allowed the writ appeals filed by the petitioners, set aside the order dated June 19, 1996 (K. Nanjunda Swamy and Others v State of Karnataka and Others), made by the learned Single Judge and remitted the petitions for fresh consideration in accordance with law and in the light of the observations made therein. The only question that arise for consideration is as to, whether the publication of preliminary notification in the newspapers two years after it was published in the Official Gazette could be treated as the 'last date of such publication' for the purpose of computing the period prescribed for making the declaration under sub- Section (1) of Section 6 of the Land Acquisition Act, 1894, hereinafter called 'the Act'?
2. The undisputed facts in this case giving rise to the aforesaid issue are as follows:
The 2nd respondent issued a notification dated 27-6-1992 under subsection (1) of Section 4 of the Act proposing to acquire certain lands for their housing scheme and got the same published in the Karnataka Gazette dated July 30, 1992. Sub-Section (1) of Section 4 of the Act prescribes the publication of such notification in two daily newspapers circulating in the locality of which at least one shall be in the regional language and cause a public notice issued of the substance of such notification. The notification issued under sub-section (1) of Section 4 of the Act as published in the Karnataka Gazette dated 30-7-1992 came to be pubh'shed in two daily newspapers dated September 25, 1994 and September 28, 1994 after two years from the date of publication of preliminary notification in the Official Gazette. The owners of the land filed their objections and the 3rd respondent after holding enquiry under Section 5-A of the Act submitted his report to the Government for issue of declaration. It is also material to see that a public notice of the substance of the preliminary notification is stated to have been published in the locality on May 9, 1994. The 3rd respondent after holding enquiry submitted a report pursuant to which the Government made the declaration in [July] 27, 1995 as per Annexure-F and the same came to be published on November 21,1995.
3. From the aforesaid dates it is clear that the declaration was made beyond one year from the date of publication of the substance of notification issued under sub-section (1) of Section 4 of the Act in the locality and after two years from the date of publication of such notification in the Official Gazette. However, it is true that the declaration has been made within one year from the date of publication or the notification in the newspapers circulating in the locality.
4. This Court by order dated 19-6-1996 dismissed the petitions inter alia holding that the declaration has been made within one year from the date of publication of notification under sub-section (1) of Section 4 of the Act in the newspapers having circulation in the locality. The said order was challenged by the petitioner in W.A. Nos. 7189 and 7190 of 1996. The Division Bench of this Court while disposing of the appeals has observed that, "It is urged on behalf of the respondents that since the matters were disposed of by the learned Single Judge at the preliminary hearing stage itself, they had no opportunity of placing on record necessary material to explain the absolute unavoidability of taking nearly two years time in effecting three modes of publication as required by Section 4(1) of the Act. If, on consideration of the material in possession of the respondents and to be placed on record by them, the delay is to be accepted as reasonable and caused under the unavoidable circumstances, such delay by itself would not vitiate the acquisition proceedings. On the other hand, if, on examination of the said material, it were to be concluded that there was no reasonable cause at all for effecting publication in the said newspapers and in the locality two years after the date of publication of Section 4(1) notification in the Official Gazette, and that it is resorted to only to overcome the statutory period of one year limitation that is imposed by clause (ii) of the first proviso to sub-section (1) of Section 6 of the Act, then there should be no hesitation to hold the acquisition proceedings as having stood vitiated in respect of the lands concerned herein, notwithstanding the fact that they are among 179 survey numbers being acquired for purpose of Housing Scheme of the second respondent-Kar-nataka Housing Board".
The writ appeals were disposed of by order dated 30-5-1997 as stated supra. Even though more than a year is elapsed, the respondents did not choose to place any material on record to explain the delay in publishing the notification issued under sub-section (1) of Section 4 in the daily newspapers to comply with one of the requirement of sub-section (1) of Section 4 of the Act. However, Sri Basavaraj Sabarad, learned Counsel appearing for respondents 2 and 3 sought for adjournment to place the material on record. The adjournment was refused as no sufficient cause was shown.
5. Sri Basavaraj V. Sabarad, learned Counsel appearing for respondents 2 and 3 has contended that in view of the decisions of the Supreme Court in Senjeevanagar Medical and Health Employees Co-operative Housing Society v Mohd. Abdul Wahab and Others and Deepak Pahwa and Others v Lt. Governor of Delhi and Others, no period having been prescribed for publication of notification issued under sub-section (1) of Section 4 of the Act in daily newspapers with its consequential effects the mere delay in publishing such notification in the newspapers would not render the declaration invalid.
6. In considering the contention of Sri Basavaraj V. Sabarad, learned Counsel, the Court should bear in mind the period prescribed for making declaration from the date of publication of notification issued under sub-section (1) of Section 4 of the Act. The circumstances for delay, if there is any, should also be taken note of. If for any unavoidable circumstances the respondents are prevented from publishing the 4(1) notification in the newspaper and in the locality, as observed by the Division Bench of this Court, the delay would not render the declaration invalid. If no cause is shown and if no steps were taken by the respondents within the reasonable time to get the notifications issued under sub-section (1) of Section 4 of the Act published in the newspaper or in the locality, such delay, in my considered view would not enure to the benefit of respondents to deduct that period from computing the period prescribed for making the declaration. The Supreme Court in Senjeevanagar Medical and Health Employees Co-operative Housing Society's case, supra, has no doubt held that, "Publication of Section 4(1) notification in the Official Gazette, its substance in the locality and also publication of the notification in two local newspapers is envisaged but no time limit for their compliance has been prescribed thereunder. If urgency power under Section 17(4) is not invoked, notice under Section 5-A is required to be given to the owner and then enquiry is conducted after giving opportunity to the owner or interested person. Thereafter, declaration should be published within one year from last of the dates of the publication under Section 4(1). In other words, from September 24, 1984, all the prescribed procedural steps should be done but without time schedule".
The Supreme Court, in the light of the provisions of Central Act 68 of 1984, was of the view that rigour of 40 days under the Validation Act got diffused and the publication of notification in newspapers beyond 40 days from the date of its publication in the Gazette as prescribed by Andhra Pradesh rules would not render the declaration invalid. It is also material to see that in Andhra Pradesh's case, the 4(1) notification was published in the Official Gazette on January 11, 1979. The substance of the notification was published in the locality on March 17, 1979. In that context it was decided that the publication of the substance of the notification in the newspapers beyond 40 days from the date of publication of notification issued under Section 4(1) of the Act did not render the declaration invalid. In Deepak Pahwa's case, supra, also, the Supreme Court is of the view that every time gap between the publication in the Gazette and the public notice in the locality is not fatal to the acquisition. Apart from the physical impossibility of scrutinising the publication in the Gazette and the public notice in the locality, one can visualise the variety of circumstances which may bring out a time gap between the two, such as breakdown of communications, strike or bundh or some other justifiable reasons and thus there cannot be any general principle that an acquisition would be regarded as void if the notification published in the Official Gazette was not accompanied or immediately followed by the public notice. The Supreme Court was also of the view that, "If there is publication in the 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 proceedings 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".
7. In Deepak's case, supra, the delay in publishing the public notice was only 29 days.
8. During the continuation of the dictation of the order today (i.e., 4-6-1998), Sri B.V. Sabarad, learned Counsel appearing for the respondents 2 and 3 produced the records for my perusal and contended that the public notice was published in the newspaper and in the locality within a reasonable time and therefore it cannot be held that they have been published to overcome the period oflimitation prescribed for making the declaration either under clause (1) or clause (2) of first proviso to sub-section (1) of Section 6 of the Act, It is seen from the records that the 2nd respondent-Housing Board undertook the construction of 5,000 apartments for National Confederation of Officers Association of Central Public Undertakings, hereinafter called 'Confederation', and pursuant to which the impugned notifications came to be issued. Before the publication of preliminary notification, joint meeting of the officers of the Confederation and the Commissioner of Housing Board was held on June 15, 1992 at which the modalities for acquisition of the land for construction of 5,000 apartments for the Confederation was discussed and decided. It was decided at the meeting that the Confederation should deposit such sum of money as may be necessary towards the cost of acquisition. Thereafter, it appears the amount was not deposited by the Confederation and in spite of correspondences and meetings between the Housing Board and the Confederation, the Confederation did not deposit the amount required to be deposited. Prom the records it is further seen that as the Confederation failed to deposit the amount the Housing Board continued the scheme for constructing houses for the general public, The substance of 4(1) notification was published in the village on May 9, 1994 and the notification was published in the Prajavani and Samyukta Karnataka dated 25-9-1994 and 2S-9-1994, respectively. In view of the decision of the Supreme Court in Deepak Pahwn's case, supra, it has to be examined whether there is any deep gap between the publication of the notification in the Official Gazette and its publication in the newspaper and if necessary to probe further to discover if there is any cause for the delay and if the delay has caused prejudice to anyone.
9. It is also seen from the records that a corrigendum was issued on November 13, 1992 and the same was published in the Gazette dated February 4, 1993. Clause (2) of first proviso of sub-section (1) of Section 6 of the Act prohibits the making of a declaration under Section 6(1) of the Act in respect of any particular land covered by notification under Section 4(1) of the Act after the expiry of one year from the date of publication of such notification. The proviso reads thus:
"6(1) - Provided that no declaration in respect of any particular land covered by a notification under Section 4, sub-section (1).-
(1) xx xx xx xx.
(2) 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".
The date of publication of notification referred to in sub-section (1) of Section 6 will have a reference to the publication of notification under Section 4(1) of the Act. Section 4(1) of the Act reads as follows:
"4(1) - Publication of preliminary notification and powers of officers thereupon:
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, 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".
10. From the cumulative reading of Section 4(1) and Section 6(1) of the Act and having regard to the meaning of the date of publication of the notification as provided in Section 4(1) of the Act, it is clear that the notification under Section 4(1) is stated to have been published on the last of the dates on which the last of the publication was made. It may be either by Gazette notification or by publishing the same in the newspapers or by way of publishing the substance of the notification in the locality and no declaration shall be made after expiry of one year from the date of such publication of the notification under Section 4(1) of the Act.
11. Having regard to the aforesaid provisions, is it just and appropriate to accept the contention of the learned Counsel appearing for the respondents 2 and 3 that the declaration has been made within one year from the date of publication of the notification in the newspapers which in turn have been published two years after the publication of the same in the Official Gazette or is the petitioner right in contending that the publication in the newspapers have been made to overcome the limitation prescribed in the Act and therefore, the declaration suffers from legal mala fides? In view of the decision of the Supreme Court in Deepak Pahwa's case, supra, it is to be examined whether the respondents have shown any sufficient cause for the delay in publishing the notification in the newspapers two years after its publication in the Official Gazette and whether any prejudice has been caused to the petitioners.
12. It is needless to state that if the declaration is made beyond one year from the date of publication of notification made under Section 4(1) of the Act it is without authority of law and the acquisition in respect of the lands of the petitioner will have no effect. It is also material to see that the market-value of the land of the petitioner will be determined with reference to the date of publication of notification under Section 4(1) of the Act. If, the petitioners are deprived of the legal right accrued to them by lapse of time, in the absence of sufficient cause for the delay, it is obvious that it results in prejudice to the petitioners.
13. It is contended by Sri Basavaraj Sabarad, learned Counsel appearing for the petitioner that the corrigendum was issued on November 13, 1992 and the same was published on 4-2-1993. It is not in dispute that the substance of 4(1) notification was published in the locality on May 9, 1994, 1 year 3 months after the publication of corrigendum and two years after the publication of the original notification. Section 4(1) notifications were published in the newspaper on September 25, 1994 and September 28, 1994, 2 years 2 months after the publication of 4(1) notification in the Official Gazette and 1 year 7 months after the publication of corrigendum in the Official Gazette. If the public notice was not given within one year from the date of publication of the notification in the Gazette and the same is published two years after its publication without there being any reasonable impediment for such publication, the only conclusion that may be arrived at is such publications have been made with the sole object of avoiding the period of limitation prescribed by clause (ii) of first proviso to sub-section (1) to Section 6 of the Act. There was no legal or factual impediment for the 2nd respondent to publish the notification in the newspaper within a reasonable time. The cause shown is, though no return was filed, that on account of correspondence between the Housing Board and the Confederation and for want of deposit of money by the Confederation to meet the expenditure of the acquisition, steps were not taken to publish the 4(1) notification in the newspaper. In view of this submission, a doubt would also arise as to the purpose for which the land was proposed to be acquired, either for Confederation or for the housing scheme proposed by the Housing Board. If the acquisition was not pursued for the purpose for which it was proposed, for want of funds, it cannot be said that there is no mala fides in publishing 4(1) notification in the newspapers two years after it was published in the Official Gazette. There is a gap of 1 year 4 months between the date of publication of the substance of 4(1) notification in the locality and making the declaration.
14. For the reasons aforesaid, the respondents have failed to show any cause, let alone sufficient cause, for the delay in publishing 4(1) notification in the newspapers to bring their case within the clause the last of the dates of such publication to save the declaration from the operation of clause (ii) of 1st proviso to sub-section (1) of Section 6 of the Act. The time-gap in the publication of 4(1) notification in the newspaper would definitely prejudice the cause of the petitioners if such publications are allowed to be made to save the limitation.
15. For the reasons aforesaid, these petitions are allowed. Rule made absolute. The declaration dated 27-9-1995 published in the Karnataka Gazette dated 22-11-1995 is hereby quashed only insofar as it relates to the petitioner's lands. In view of the declaration having been quashed as having been made beyond one year from the date of publication of notification under Section 4(1) of the Act, the preliminary notification will also not survive in respect of the lands of the petitioners. In view of the acquisition proceedings of the petitioner's lands having been quashed for non-compliance with the statutory provisions, there is no legal impediment for the respondents to initiate fresh acquisition proceedings in accordance with law.