Allahabad High Court
Smt. Jyoti Chaturvedi & Others vs State Of ... on 4 July, 2019
Equivalent citations: AIRONLINE 2019 ALL 1186, 2019 (6) ALJ 50 (2019) 7 ADJ 739 (ALL), (2019) 7 ADJ 739 (ALL)
Bench: Pankaj Kumar Jaiswal, Jaspreet Singh
HIGH COURT OF JUDICATURE AT ALLAHABAD, LUCKNOW BENCH A.F.R. Court No. - 1 Case :- LAND ACQUISITION No. - 139 of 2012 Petitioner :- Smt. Jyoti Chaturvedi & Others Respondent :- State Of U.P.,Thru.Prin.Secy.,Housing & Urban Planning & Ors Counsel for Petitioner :- Rakesh Bajpai,Amrendra Nath Tripathi,Pankaj Kr. Srivastava Counsel for Respondent :- C.S.C.,Ajay Kumar Singh,Amit Dwivedi,Himanshu Kamboj,Mukund Tewari,Ravi Singh Hon'ble Pankaj Kumar Jaiswal,J.
Hon'ble Jaspreet Singh,J.
(Per Jaspreet Singh, J) The instant writ petition has been preferred by the petitioners assailing the notification for acquisition dated 20.10.2011 issued under Section 4(1) of the Land Acquisition Act, 1894 in respect of the land of Khata No.989 of village, Behasa, Pargana Bijnaur, Tehsil and District Lucknow as well as the declaration dated 15.11.2012 issued under Section 6(1) of the Land Acquisition Act, 1894. Subsequently the writ petition was amended and the petitioners have further sought a mandamus to the effect that it be declared that the U.P. Gazette Extra Ordinary dated 15.11.2012 is ante dated and its actual date of publication is any date in between 22.11.2012 and 03.12.2012. Further ancillary reliefs have been sought to restrain the respondents from not dispossessing the petitioners from their respective plots as well as commanding the respondents not to demolish the constructions existing over the plot belonging to the petitioners.
Briefly the facts giving rise to the present petition are that initially Khata No.989/1 and 2 of village Behasa Pargana Bijnaur Tehsil and District Lucknow having an area of 0.3040 hectare belonged to the respondent no.8, namely, Indra Pal.
Certain lands of village Bargawan and village Behasa Pargana Bijnaur Tehsil and District Lucknow were made the subject matter of acquisition by the State Government by issuing a notification under Section 4(1) of the Land Acquisition Act, 1894 dated 08.07.1987 invoking the urgency clause under Section 17 of the Land Acquisition Act, 1894.
Subsequently, the declaration under Section 6 was issued on 07.08.1987. This declaration included the land of Khata No.989 having an area of 2 bighas 19 biswa. The acquisition of the said land was for the public purpose of establishment of a residential colony of Kanpur Road, Prasar Yojna Part-V of Lucknow Development Authority. This was followed by an award dated 26.10.1989. Significantly, the award dated 26.10.1989 awarded compensation only in respect of portion and not of the entire land covered under the notification dated 08.07.1987 and the declaration dated 07.08.1987. The award did not make any compensation in respect of Khata No.989 of village Behsra Pargana Bijnaur Tehsil and District Lucknow. Thus, as far as the land of the respondent no.8 was concerned relating to Khata No.989 of village Behsa Pargana Bijnaur Tehsil and District Lucknow having an area of two bighas and 19 biswa was not made the subject matter of the award dated 26.10.1989. The Lucknow Development Authority for whom the said land was acquired prepared a layout plan for its Transport Nagar Scheme. However, it is the case of the petitioners that the said plot No.989 though was initially acquired under the declaration dated 07.08.1987. However, it was not made the subject matter of the award dated 26.10.1989 and as such no compensation was awarded, accordingly, it is the case of the petitioners that the acquisition in so far as Plot No.989 is concerned, lapsed.
The petitioners after making inquiry and finding that the aforesaid land of the respondent no.8 was not acquired, purchased the same from the respondent by means of four registered sale deeds. The details of which have been mentioned in paragraph 16 of the writ petition. It is also submitted by the petitioners that the Tahsildar (Judicial), Sadar, Lucknow vide order dated 27.07.2010 mutated the name of the petitioners in respect of the plot in question which initially and previously was in the name of Indar Pal, the respondent no.8. The petitioners stated that they are the owner in possession of their respective plot since its purchase with effect from 10.06.2010 and they have raised constructions. The petitioners have further attempted to buttress their submissions regarding their possession with the fact that the Lucknow Development Authority had issued notice to the petitioner no.4 under Sections 27(1), 28(1) and 28(2) of the Uttar Pradesh Urban Planning & Development Act, 1973. This notice has been brought on record to indicate that the petitioners had constrctions and were in possession of the property in question.
Later on 20.10.2011, the State Government again issued a notification under Section 4(1) of the Land Acquisition Act in respect of certain plots for the Kanpur Road, Nagar Prasar Yojna Part-VI of the Lucknow Development Authority. This notification dated 20.10.2011 also included Khata No.989 of village Behsa Pargana Bijnaur Tehsil and District Lucknow having an area of 0.721 hectares. The aforesaid notification called upon the preson interested to file objection as contemplated under Section 5-A of the Land Acquisition Act. It is the case of the petitioners that they had filed their objections in terms of under Section 5-A of the Land Acquisition Act. Thereafter a declaration under Section 6(1) of the Land Acquisition Act was made on 15.11.2012. It is at this stage that the petitioners being aggrieved against the subsequent notification under Section 4(1) dated 20.10.2011 and declaration under Section 6(1) dated 15.11.2012 preferred the instant writ petition seeking quashing of the aforesaid notifications as indicated above and for the ancillary reliefs which has been noted hereinabove first.
The State Government and Lucknow Development Authority have filed their respective counter-affidavits disputing the claim of the petitioners and have sought that the writ petition deserves dismissal. Since the Lucknow Development Authority had sold part of the land in question to its allottees who have been impleaded as private respondents no.9 to 11 who have also filed their separate counter-affidavit also seeking dismissal of the above writ petition.
The Court has heard Sri Amrendra Nath Tripathi learned counsel for the petitioners, Sri Pradeep Raje, learned Standing Counsel for the respondents no.1 to 4, Sri Mukund Tewari for the respondents no.5 to 7 and Sri Amit Dwivedi for the private respondent no.9.
The petitioners have made a two fold submissions while assailing the notifications under Section 4(1) and declaration under Section 6(1) of the Land Acquisition Act, 1894. (I) It has primarily been submitted that the purpose for acquisition which was initiated earlier in the year 1987 was for residential purposes and despite the same the State Government and the Lucknow Development Authority did not use and utilize the land for the purpose for which the land was acquired which indicated that realistically the State Government was not in need of the said land. Thus, the invocation of the notification under Section 4(1) dated 20.10.2011 and the declaration under Section 6(1) dated 15.11.2012 almost after 24 years is nothing but a malafide exercise of power on behalf of the State Authority and it has misused the power of the ''eminent domain'. It has also been submitted that though the objections were invited under Section 5-A of the Land Acquisition Act yet the petitioners were not made aware or informed of the decision taken by the State Authority on the said objection and thus it indicated that the respondent-State was misusing its power; (II) Second ground taken by the petitioners is that since the notification under Section 4(1) of the Land Acquisition Act was made on 20.10.2011 and the declaration under Section 6 was not published in the official gazette in time and the gazette notification dated 15.11.2012 is ante dated. It is the submission of the learned counsel for the petitioners that since the notification of the declaration under Section 6(1) of the Land Acquisition Act was not made within one year from the last date of publication under Section 4 of the Land Acquisition Act accordingly the declaration under Section 6 was defective and illegal and it does not amount to a declaration in law, consequently the acquisition lapsed.
In order to buttress his submission, the learned counsel for the petitioners has submitted that it is only after filing of the above writ petition that the petitioners became aware of the fact that the notification under Section 4(1) of the Land Acquisition Act dated 20.10.2011 was published in the official gazette on 22.10.2011.
For compliance of Section 4(1) of the Act, it requires that the Collector will cause publication of notice of substance of such notification to be given at a convenient place in the said locality as well as for publishing the notification in at least two daily newspapers circulating in that locality of which at least one shall be in the regional language, the notification under Section 4(1) was published in two daily newspapers on 25.10.2011 and the substance of the said notification which was made available to the persons of the locality by the local public by beat of drum [Munadi] on 17.11.2011.
This fact regarding publication of the substance of notice on 17.11.2011 was clearly stated by the State respondent in its detailed counter-affidavit filed against the unamended writ petition and it was also reiterated subsequently even after the writ was amended by the petitioners.
Learned counsel for the petitioners has further submitted that the declaration under Section 6(1) of the Land Acquisition Act though is dated 15.11.2012 but the same was published in the newspapers having circulation in the locality on 28.11.2012 and the government press received the request of the State Government to publish the declaration dated 15.11.2012 under Section 6(1) of the Land Acquisition Act on 22.11.2012 for which the government press raised the invoice for the publication on 03.12.2012 accordingly it has been submitted that the date of publication of the declaration under Section 6(1) of the Land Acquisition Act could have been only between 22.11.2012 i.e. the date on which the government press received the request for publication and 03.12.2012 i.e. the date on which it raised the invoice. It has thus been submitted that since this date of the declaration having been published in the official gazette only some time between 22.11.2012 and 03.12.2012 being beyond the period of one year from the last date of notification under Section 4(1) of the Land Acquisition Act dated 20.10.2011, hence it is submitted that the said declaration was bad and the acquisition lapsed.
Learned counsel for the petitioners has heavily relied upon annexures no.26 to 29 filed with the amended writ petition and also reproduced in the amended paragraps of the writ petition bearing numbers 33-A to 33-J. Per contra learned State Counsel has referred to its counter-affidavit and has submitted that initially the land of plot No.989 was sought to be acquired in the year 1987. However, since award of certain part of the land could not be made, consequently a fresh notification was made in the year 2011 which was followed by the declaration dated 15.11.2012 which has been issued within the time prescribed under Section 6(1) (ii) of the Land Acquisition Act and it has been submitted that there is no defect in the notification and the acquisition as sought to be challenged by the petitioners is merely on assumptions of the petitioners though actually the notification is well within time and does not suffer from any legal error.
It has further been submitted by the learned State Counsel that the petitioners are not bonafide purchasers; inasmuch as they have made the purchase of the land only in the year 2010 and that too knownfully well that the area which has been purchased by the respondent no.8 had in the meantime already been allotted to the allottees of the Lucknow Development Authority and the Lucknow Development Authority in its layout map had indicated that the land in question as being under encroachment. It has further been submitted that the other ground raised by the petitioners also does not hold water for the reason that it is within the domain of the State to acquire the land and it is not open for the person concerned to assail or challenge the acquisition on the ground that the State has not put the land to use for which it was acquired since the State Government can change the purpose and the use of the land for any purpose it so deems fit and accordingly it is submitted that the submission of the learned counsel for the petitioners must be rejected.
Sri Mukund Tewari learned counsel for the Lucknow Development Authority has urged that on the find reading of Section 6 of the Land Acquisition Act, it would indicate that the declaration purported to be under subsection (1) indicates that such declaration must be made within a period of one year from the last date of notification and followed by three modes of publication of declaration as provided under Section 4(1) of the Land Acquisition Act. Sri Tewari has vehemently urged that making a declaration and publishing the declaration are two separate acts. All that needs to be seen is that the declaration must be made within one year and even if such declaration is published on a subsequent date, the declaration does not loose its validity and force nor the same can be assailed on the said ground. It has been submitted that the declaration was made within the prescribed period as contained under Section 6(1)(ii) of the Land Acquisition Act. It has further been submitted that since the declaration was made on 15.11.2012 and the same is within one year from the last date as prescribed under Section 4(1) of the Land Acquisition Act. Thus, the submission of the learned counsel for the petitioners must fail.
Learned counsel for the petitioners Sri Amrendra Nath Tripathi has relied upon the decision of the Apex Court reported in 1997 (8) SCC page 47, Eugenio Misquita and others Vs. State of Goa and others and in 2011 (9) SCC page 164, Devender Kumar Tyagi and others Vs. State of Uttar Pradesh and others.
Sri Mukund Tewari has relied upon the decision reported in 2002 (7) SCC page 712, Urban Improvement Trust, Udaipur Vs. Bheru Lal and others and a Division Bench decision of this Court reported in 2008 (26) LCD page 1346, M/s. Nandpuri Sahkari Grih Nirman Samiti Ltd., Lucknow Vs. State of U.P. and others.
The private respondent Sri Amit Dwivedi has submitted that once the land vested with the State in terms of the notification, the same cannot be divested and further it has been submitted that since the initial notification issued in the year 1987 was done by invoking the urgency clause under Section 17, thus in such a case Section 11-A of the Land Acquisition Act would not be applicable and since the possession was taken and vested with the State Government when the initial notification of 1987 was issued, thus it cannot be said that the petitioners are in possession rather the same is with the State and the private respondent being the allottees and lease holder of the Lucknow Development Authority were the rightful persons to enjoy the possession. In support of his submission Sri Dwivedi has relied upon the decision of the Apex Court reported in 1993 (4) SCC page 369, Satendra Prasad Jain and others Vs. State of U.P. and others and V. Chandrasekaran & another Vs. Administrative Officer & others reported in 2012 (12) SCC page 133.
The Court has given its anxious consideration to the submissions of the respective parties and carefully perused the record.
On considering the respective submissions of the learned counsel for the parties, the question to be determined by this Court is whether the declaration under Section 6(1) of the Land Acquisition Act which can be assailed by the petitioners on the ground that it is not within the time prescribed in Section 6(1)(ii) of the Land Acquisition Act.
In order to answer the aforesaid question, it will be germane to understand the scheme of the Land Acquisition Act more particularly in context with the notifications issued under Section 4(1) of the Act and declaration made under Section 6(1) of the Act and the legislative background in respect of the time limits mentioned in Section 6 of the Act.
The Land acquisition Act, 1894 was enacted for the purpose of compulsorily acquiring of land required for public purpose or for purpose of companies and for determination of the amount of compensation to be paid on account of such acquisition. The Act contemplated that initially a notification would have to be issued under sec. 4(1) indicating the intention of the Government to acquire land or other property. The notification under sec. 4(1) has to be published in the official Gazette. The 1984 Amendments require the sec. 4(1) notification to be also published in two local newspapers of which one at least should be in a regional language, in addition to the public notice, the substance of such notification has to be made by the Collector at convenient places in the locality where the land is situate. Thus, there are three types of publications of section 4(1) notification. The date of the last of these publications of such public notice is deemed to be the date of the notification under sec. 4(1).
After sec. 4(1) notification is issued, section 5A contemplates an inquiry into objections to be filed by those interested in the land or property. That section refers to filing of objections before the Collector, and he has to give an oral hearing and thereafter he has to submit a report to the concerned Government which issued sec. 4(1) notification, for taking further action. The procedure regarding hearing of objections can be dispensed with in case of urgency under section 17(4).
If it decides to go ahead, it has to make a declaration under sec. 6 of the Act. The said declaration will be conclusive proof of the public purpose. The declaration that is made under sec. 6 has to be published, as per a procedure which is similar to the procedure prescribed for publication of a notification under section 4(1).
Initially, under the Act of 1894, there were no time limits prescribed for the making of declaration under sec. 6 after the publication of the notification under sec. 4(1) of the Act. This led to unreasonable delays. In cases, where there was unreasonable delay in the making of the declaration under sec. 6 of the Act, the owner of the property was under a great disadvantage because the market value would have to be determined on the basis of the sec. 4(1) notification published several years earlier. Such unreasonable delays were criticized by the Supreme Court in State of MP vs. Vishnu Prasad AIR 1966 SC 1593.
For the purpose of expediting the making of declarations under sec. 6, the Land Acquisition (Amendment and Validation) Ordinance, 1967 was promulgated. The Ordinance provided that no declaration under section 6 should be made [in respect of any particular land covered by the notification under section 4(1), published after the commencement of the Ordinance,] after expiry of three years from the date of such publication and in cases where notification under section 4(1) has been published before the commencement of this Ordinance, the declaration should not be made after the expiry of two years from the commencement of the Ordinance. The provisions of the Ordinance were later on incorporated into the Amending Act, 1967.
In 1984, Parliament felt that this period of three years between a notification under section 4(1) and the declaration under section 6 should be reduced to one year. Therefore, the 1984 Amendment provided that the sec. 6 declaration must be made within one year from the date of publication of the sec. 4(1) notification, where such notification under section 4(1) was published after the 1984 Amendment Act. In law, if sec. 6 declaration was not made within one year as provided by the 1984 Amendment, it would be invalid. Once there was no valid section 6 declaration made within one year as aforesaid, the sec. 4(1) notification issued earlier would also lapse and the State would have to come forward with a fresh sec. 4(1) notification.
The 1984 Amendment, while fixing a period of one year for making of the declaration under sec. 6 from the date of publication of a sec. 4(1) notification, however, took care to see that those who went to Court and obtained stay orders did not deprive the State of the benefit of the full one year for taking the various steps necessary to reach the stage of declaration under sec. 6 - namely the holding of an inquiry under sec. 5A etc. It, therefore, inserted an Explanation below sec. 6(1) to the effect that if stay of any action or proceeding taken in pursuance of sec. 4(1) notification was obtained, the period covered by the stay orders could be excluded while computing the period of one year.
In the above backdrop the amended Section 6 of the Land Acquisition Act as it stands today is being reproduced hereinafter for convenient perusal.
"6. Declaration that land is required for a public purposes:-
(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 authorized to certify its orders [and different declaration 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) published after the commencement of the Land Acquisition (Amendment and Validation) Ordinance, 1967 (1 of 1967), but before the commencement of the Land Acquisition (Amendment) Act, 1984 (Act No.68 of 1984), shall be made after the expiry of three years from the date of the publication of the notification; or
(ii) published after the commencement of the Land Acquisition (Amendment) Act, 1984 (Act No.68 of 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 issued under Section 4, sub-section (1), is stayed by an order of a Court shall be excluded.
Explanation 2. Where the compensation to be awarded for such property is to be paid out of the funds of a corporation owned or controlled by the State, such compensation shall be deemed to be compensation paid out of public revenue]"
(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 last 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.
(3) The said declaration shall be conclusive evidence that the land is needed for a public purpose or for a Company, as the case may be; and after making such declaration, the [appropriate Government] may acquire the land in the manner hereinafter appearing.
From the perusal of Section 6 as quoted above, it would indicate that the legislature has used the words ''a declaration shall be made to that effect under the signature of a Secretary to such Government or of some officer duly authorized to certify its order'. Thereafter the word has been used ''and different declaration 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 as or has been made ''whenever require' under Section 5-A, Sub-section (2)'.
Thereafter a proviso has been appended to the aforesaid Sub-section (1) which clearly indicates that no declaration in respect of any particular land which is covered by a publication under Section 4 Sub-section(1) published after the commencement of the Land Acquisition (Amendment) Act of 1984 shall be made after the expiry of one year from the date of publication of the notification.
Sub-section (2) of Section 6 provides that 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 the such publication and the giving of such public notice, being hereinafter referred to as the date of publication of declaration, and such declaration shall state the District and other territorial division in which the land is situate, the purpose for which it is needed its approximate area.
The aforesaid language used in the Section 6, if considered in context with the language used in Section 4 of the Land Acquisition Act would indicate that a notification under Section 4 is required to be published in the official gazette and in two daily newspapers and the Collector is also required to cause the notice of the substance of such notification to be given at the convenient place in the said locality where the land is situate.
In Section 4, it has been clarified by inserting the word hereinafter quoted for ready reference which was included by means of the amending Act 68 of 1984 which reads as under:-
"The last of the dates of such publication in the said locality and the giving of such public notice being hereinafter referred to as the date of publication of notification."
In view of the above, in order to ascertain whether the declaration has been made within one year from the date of publication of Section-4, it will be relevant to determine that what is the last date of the publication since three modes have been prescribed under the Act. (i) The Section 4 notification has to be published in the official gazette; (ii) In two daily newspapers out of which one would be in the regional language; (iii) A substance of the notice to be notified at a convenient place in the locality to be done by the Collector. The last of the three dates relating to the modes of publication as mentioned above would be the starting point for computing the period of one year from which the declaration is to be made under Section 6(1) of the Land Acquisition Act.
In the case in hand, it is not disputed that the notification under Section 4 is dated 20.10.2011 which was published in the official gazette on 22.10.2011 and it was published in two daily newspapers on 25.10.2011. At the same time, the State Authorities submits that the substance of the notice was made through the beat of drum at the convenient place by the Collector on 17.11.2011. This third mode as a matter of fact is disputed by the petitioners but there is no material brought on record to substantiate the aforesaid plea despite the averment regarding the said dates have been made in the counter-affidavit of the State filed on 17.05.2013 in para-31.
However the undisputed fact remains that the declaration under Section 6(1) of the Act is dated 15.11.2012. The date of declaration published in the newspapers is dated 28.11.2012. The date of the official gazette has not been specifically mentioned. However, the date of publication is said by the petitioners to be between 22.11.2012 to 03.12.2012 for the reason that the government press received the request on 22.11.2012 and it raised the invoice in respect of the publication in 03.12.2012. Even in the aforesaid backdrop, it would be clear that the declaration definitely is dated 15.11.2012 which though may have been sent for publication at a subsequent date.
The learned counsel for the petitioners has relied upon the Apex Court decision of Devender Kumar Tyagi (supra) wherein considering the aforesaid issue it has held as under:-
"12. The Notification under Section 4 has to be published in the manner laid down therein. 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) of the LA Act. Also, the proviso (ii) to Section 6(1) lays down a time-limit within which declaration has to be made. The said proviso (ii) significantly only provides a time-limit for a declaration and not for publication as it has been incorporated in sub-section (1) of Section 6 of the LA Act.
and it has been made the basis to challenge the declaration in the present writ petition.
However, it will be relevant to notice that there has been a cleavage of opinion regarding the time limit and the same was considered by a larger Bench of the Supreme Court in the case of S.H.Rangappa Vs. State of Karnataka and another reported in 2002 (1) SCC 538.
The sole question in the aforesaid case was whether notification under Section 6(2) of the Land Acquisition Act 1894 should be published within the period prescribed by the proviso 6(1) of the Act. Considering the aforesaid the Bench of Hon'ble three Judges held as under:-
7.Declaration under Section 6 is preceded by issuance of a notification under Section 4 which indicates the intention of the Government to inter alia acquire land for a public purpose. Pursuant to the issuance of the same, objections can be filed and after hearing the same, Section 6(1) enables the appropriate authority if it is satisfied, after considering the report made under Section 5A of the Act, that if any particular land is needed for a public purpose, then a declaration is to be made under the signature of an appropriate officer. Where notification under Section 4 is published after the commencement of the Land Acquisition Amendment Act, 1984, as in the present case, proviso (ii) requires that such a declaration shall not be made after the expiry of one year from the date of the publication of Section 4 notification.
8. We wish to clarify that the words "publish" and "from the date of publication of the notification" occuring in proviso (ii) to Section 6(1) refer to the publication of the Section 4 notification and have no reference to the publication of any notification under Section 6. Under Section 6(1), it is only a declaration which is required to be made, the time limit being within one year of the publication of the Section 4 notification. The main purpose for the issuance of a declaration under Section 6 is provided by sub-section (3), namely, that the declaration is conclusive evidence that the land is needed infer alia for a public purpose and after the making of the declaration the appropriate Government may acquire the land in the manner provided by the Act. Sub-section (2) requires the declaration to be published in the Official Gazette and in two daily newspapers circulating in the locality in which the land is situate and in addition thereto the Collector is also required to cause public notice of the substance of the declaration to be given in the convenient places in the said locality.
9. It is pertinent to note that sub-section (2) of Section 6 does not prescribe any time limit within which the declaration made under Section 6(1) is to be published. It is well known that after an order or declaration is made there can be a time gap between the making of the order or a declaration and its publication in the Official Gazette. Whereas the time limit for the making of an order is provided under Section 6(1), the legislature advisedly did not provide for any time limit in respect of the steps required to be taken under sub-section (2) of Section 6. If the contention of Mr. G.L. Sanghi, the learned senior counsel for the appellant is correct, the effect would be that not only the declaration would have to be published within the time prescribed under the proviso to Section 6( 1) but all other steps, like publication in the daily newspaper and the Collector causing public notice of the declaration to be given at a convenient places in the locality, must also be completed within a period of one year of Section 4 notification. This could certainly not be a consequence contemplated by the legislature. As already observed, the purpose of Section 6 notification being to give a final declaration with regard to the need of the land for public purpose, the interest of the land owners was sufficiently safeguarded with the requirement of the making of the declaration under Section 6(1) within a prrescribed period. It is difficult for us to read into sub-section (2) the provisions of the proviso to Section 6(1) which relate to the time limit for issuance of the notification under Section 6(1).
10. This view which we have expressed hereinabove finds support from a decision of a Bench of four Judges of this Court in the case of Khadim Hussain v. State of U.P. & Ors., [1976] 1 SCC 843. The question which arose in that case related to the time within which the declaration made under Section 6(1) had to be published in the Gazette. Repelling the contention that there was any time prescribed for publication of the declaration this Court held as follows:
"25. It is clear from the provisions set out above that the object of the notification under Section 6 is to ensure that the Government is duly satisfied, after an enquiry at which parties concerned are heard, that the land under consideration is really needed for a public purpose and that the declaration is to operate as conclusive evidence to show that this is so. The conclusiveness of this declaration cannot be questioned anywhere if the procedure dealing with its making has been observed. The notification which takes place under Section 6(2), set out above, follows and serves only as evidence of the declaration. That the declaration is shown by the fact that it has to be signed by a Secretary or other officer duly authorised. The declaration is in the form of an order. The notification is its publication and proof of its existence. It has been shown, in the case before us, that the deemed notification under Section 6 took place about three and a half months after the expiry of two years from the commencement of the ordinance of 1967. But, it is not argued on behalf of the appellant that the declaration under Section 6 was similarly delayed. Presumably, it was within time.
26. A look at the amendment introduced by the Section 4(2) of the Land Acquisition (Amendment; and Validation) Act, 1967, shows that it is declaration which has to take place within two years of the expiry of the commencement of the ordinance which came into force on January 20, 1967. In fact, Section 4(2) of the Amendment Act of 1967, set out above, itself makes a distinction between a "declaration" under Section 6 and its "notification" under Section 4 of the principal Act. It does not say that no notification under Section 6 of the principal Act can take place beyond the time fixed. The prohibition is confined to declarations made beyond the specified period. If the case of the appellant could be that no declaration was made within the prescribed time, it was his duty to prove it. He has not discharged that onus.
Thus it would be seen that the issue has been answered clearly by the Apex Court in the aforesaid terms.
The same proposition has been held in another decision of the Apex Court in Sriniwas Ramnath Khatod Vs. State of Maaharashtra and others reported in 2002 (1) SCC 689. The relevant paras are reproduced hereinafter:-
6. Thus under Section 4 a notification has to be published in the manner laid down therein. 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) of the Land Acquisition Act. Also the first proviso to Section 6(1) lays down a time limit within which declaration has to be made. 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 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.
12. In our view the wordings of Sections 4, 6 & 11-A leave no room for doubt that the Land Acquisition Act made a distinction between a "declaration" and "publication". To be noted that under Section 4 the notification has to be published. Again under Section 11-A the period of two years has to be commuted from the date of "publication of the declaration". As distinct from this under the first proviso to Section 6(1) a "declaration" cannot be made after the expiry of one year from the date of "publication of the notification under Section 4". The words published in clauses (i) and (ii) of the first proviso to Section 6(1) refer to the publication of notification under Section 4. A plain reading of Section 6 shows that a distinction is made between a "declaration" and a "publication". Viewed from this angle the wordings of the first proviso to Section 6(1) become important. The proviso lays down that "no declaration (under Section 6) shall be made after expiry of three years [under clause (i)] where the notification under Section 4 is published before the commencement of the Land Acquisition Act, 1984 and after expiry of one year [under clause (ii)] where notification under Section 4 was published after commencement of Land Acquisition Act, 1984. Thus the proviso clearly talks of "Publication" in respect of notification under Section 4 and then provide a time for "making of declaration" under Section 6. The legislature is purposely omitting to use the words "Publication of declaration" in the proviso to Section 6.
13. In our view, 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 as it is merely a ministerial act.
A Division Bench of this Court in the case of M/s. Nandpuri Sahkari Grih Nirman Samiti Ltd., Lucknow (supra) as held as under:-
"14. In our view, the objection raised by the petitioner is clearly answered in this judgment. The period of one year is to be counted between the last date of publication under Section 4(1) and the declaration under Section 6(1) of the Act. That having been done within one year, no fault can be found on that count. The relevance of the last date of publication of the declaration under Section 6 is for the purposes of calculating the period of two years under Section 11-A of the Act. That period of two years is to be reckoned from the last date of the three modes of publication prescribed under Section 6(2), as held by the Apex Court in Kunwar Pal Singh (Dead) by Lrs. V. State of U.P. and others, reported at (2007) 5 SCC 85. As far as the period of one year for making declaration under Section 6(1) of the Act is concerned, it is to be counted from the last date of the publication of the notification under Section 4(1) of the Act and making of the declaration under Section 6(1) of the Act, and not the last date of publication of the declaration under Section 6(2) of the Act."
From the principles of law as extracted above, it is no more res integra that the declaration of notification under Section 6(1) of the Act is to be made within a period of one year and its subsequent publication is merely a ministerial act.
Learned counsel for the petitioners has heavily relied upon the case of Devender Kumar Tyagi (supra) on. However, on reading of the aforesaid report, it would be seen that the facts of the aforesaid case are different to the facts of the present case. In the case of Devender Kumar Tyagi admittedly the notification under Section 4 of the Land Acquisition Act was made on 03.07.2006 while it was published in the newspapers on 04.07.2006 and the declaration under Section 6 was made on 18.12.2007 which was clearly beyond the period of one year and it is in the aforesaid circumstance that the Apex Court had quashed the declarations under Section 6 of the Land Acquisition Act.
However, in the present case, it would be found that it is not disputed that the declaration under Section 6(1) of the Act was made on 15.11.2012. Its publication later would not affect its validity as held in case of S.H.Rangappa and Sriniwas Ramnath Khatod (supra) holding the publication to be a ministerial act which would not impede the validity of the declaration.
However, to determine the point of limitation, it would be seen that on 17.11.2011 the notification under Section 4 was notified by the Collector by publishing the substance of the same by beat of drum. Though the petitioners have tried to question of the aforesaid date, but could not bring any material on record by which it could be discerned that the substance of the notice was not published by local beat of drums on 17.11.2011. Thus, this date being the last of the three modes of publication as provided under Section 4(1) of the Act would be the date of commencement of limitation for the purposes of making a declaration of notification under Section 6(1) of the Act. It will also be relevant to note that there is always a presumption of the official acts being done in a proper manner. Since the petitioners by merely making a bald statement cannot rebut the presumption which is attached to the official acts, thus 17.11.2011 would be the relevant date and from the said date if the period of one year is reckoned, it would be found that the declaration made on 15.11.2012 is well within the period as prescribed in law and thus there can be no fault found with the making of the declaration which is within the period as prescribed in law.
In view of the above detailed discussions, the submissions of the petitioners that the declaration under Section 6(1) of the Land Acquisition Act was not within the time prescribed, does not find favour with the Court. However, as far as the other submission regarding the malafidies of the State to issue the notifications under Section 4 and Section 6 of the Land Acquisition Act in 2011 in respect of the land which was sought to be acquired in the year 1987 also does not have substance; inasmuch as it has been concluded by a large number of decisions of the Apex Court that the State is entitled to utilize the land in the manner it so desires. The relevant paragraph of the decision of the Apex Court in the case of V. Chandrasekaran & another (supra) is being reproduced as under:-
"17. The said land, once acquired, cannot be restored to the tenusre holders/persons-interested, even if it is not used for the purpose for which it was so acquired, or for any other purposes either. The proceedings cannot be withdrawn/abandoned under the proviso0ns of Section 48 of the Act, or under Section 21 of the General Clauses Act, once the possession of the land has been taken and the land vests in the State, free from all encumbrances. (Vide: State of Madhya Pradesh V. V.P.Sharma 1966 AIR (SC) 1593 Lt. Governor of Himachal pradesh & anr. V. Shri Avinash Sharma 1970 AIR (SC) 1576 Satendra Prasad jain V. State of U.P. & others, 1993 AIR (SC) 2517 Rajasthan Housing Board & Ors. V. Shri Kishan & Ors. 1993 2 SCC 84 and Dedicated Freight Corridor Corporation of India V. Subodh Singh & Ors. 2011 11 CC 100."
Thus, the second submission of the learned counsel for the petitioners also fails.
In view of the above, this Court has no hesitation in holding that the grounds taken by the petitioners to assail and challenge the notifications have no force and accordingly the writ petition is dismissed. There shall be no order as to costs.
[Jaspreet Singh, J] [Pankaj Kumar Jaiswal, J] Order Date :- July 4,2019 ank/-