Karnataka High Court
The University Of Agricultural Science ... vs The Special Land Acquisition Officer, ... on 16 October, 1998
Equivalent citations: ILR1999KAR4597, 1999 A I H C 1038, (1999) 1 KANT LJ 75 (1999) 1 LACC 457, (1999) 1 LACC 457
Author: Mohamed Anwar
Bench: Mohamed Anwar
JUDGMENT G.C. Bharuka, J.
1. The appellant is a registered Housing Co-operative Society. It is aggrieved by the order dated 14-2-1997 passed in W.P. No. 2919 of 1992 and analogous cases. By the impugned order, the learned Single Judge has quashed the notifications issued under Sections 4(1) and 6(1) of the Land Acquisition Act, 1894 (in short the 'Act') by which the lands of the private respondents were sought to be acquired for the purpose of formation of housing sites by the appellant-Society.
2. The short question of law involved in this writ appeal is as to whether the declaration under Section 6 of the Act was barred by limitation under clause (ii) of the proviso to Section 6(1) of the Act?
3. The preliminary notification under Section 4(1) of the Act was first published in the two local dailies viz., Prajavani and Sanjewani on 31-3-1990 and 5-4-1990 respectively. Thereafter, the same was published in the Karnataka Gazette on 12-4-1990. According to the learned Single Judge, since there was no convincing material on record to show that the substance of the said notification was published at the convenient places in the locality of the villages in question, therefore, he took the last date of publication of the said notification as 12-4-1990 for the purpose of computing limitation under clause (ii) of the proviso to Section 6(1) of the Act.
4. The declaration under Section 6 of the Act was published in the Karnataka Gazette on 23-5-1991. It was also published in the local daily Lokavani on 13-5-1991 and another local daily Deccan Herald on 18-5-1991. The substance of the declaration was duly notified in the office of the Land Acquisition Officer and in the village chavadi as well.
5. In view of the above said facts, the questions that arise for consideration are: (i) whether keeping in view the materials on record, it can be held that the substance of the notification under Section 4(1) of the Act was published at convenient places in the locality concerned and if so on what dates; and (ii) whether the declaration under Section 6 of the Act was made before the expiry of one year from the date of publication of notification under Section 4(1) of the Act.
6. Section 4(1) of the Act as amended by the Land Acquisition (Mysore and Amendment) Act, 1961 reads thus.--
"4. Publication of preliminary notification and powers of officers thereupon.--(1) Whenever it appears to the appropriate Government or the Deputy Commissioner that land in any locality is needed or is likely to be needed for any public purpose or for a company, [notification stating the purpose for which the land is needed, or likely to be needed, and describing the land by its survey number, if any, and also by its boundaries and its approximate area] 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 Deputy Commissioner may also cause a copy of such notification to be served on the owner, or where the owner is not the occupier, on the occupier of the land.
Explanation.--The expression 'convenient places' includes, in the case of land situated in a village, the office of the Panchayat within whose jurisdiction the land lies".
7. From the above provisions it is clear that the last date of publication through the third statutory mode as envisaged under Section 4 has to taken as the date of publication of the notification for the purpose of computing limitation under clause (ii) of proviso to Section 6(1) of the Act. Therefore, if it is found that there was a publication of substance of the notification through the last mode in the locality on the dates subsequent to the first two modes, then that date has to be taken as the date of publication of notification. In the present case, the Land Acquisition Officer as well as the appellant has taken the stand that there was a publication by the third mode by giving public notice at convenient places in the locality.
8. Section 55 of the Act empowers the State Government to make rules consistent with the Act for guidance of officers in all matters connected with its enforcement. Pursuant to the said power, the State of Karnataka has framed the Karnataka Land Acquisition Rules, 1965 (in short the 'Rules'). Rule 3 of the Rules provides the manner in which the third mode of publication envisaged under Section 4(1) of the Act has to be effected. This rule reads as under.--
"3. Issue of notice.--Immediately after the publication of the notification under sub-section (1) of Section 4, the Deputy Commissioner shall as required by the said sub-section cause a notice stating that the land is needed, or is likely to be needed for a public purpose, specifying the purpose and requiring all persons interested in that land to lodge before the Deputy Commissioner, before the date specified in the notification (mentioning the said date) a statement in writing, of their objections, if any, to the proposed acquisition of the land or any land in the locality, to be published at convenient place in the locality where the land proposed for acquisition is situated and copies thereof affixed in the offices of the Deputy Commissioner of the District, Tahsildar of the Taluk and the village chavadi, if any, of the village in which the land is situated. A copy of the notice may also be caused to be served individually, on every person known or believed to be interested in the land to be acquired".
9. Keeping in view the above noticed statutory rule, we had sought for the original records to ascertain as to whether public notices were effected at the public places statutorily specified. The records contained the materials show that affixation of public notice was effected in the offices of the Deputy Commissioner and the Tahsildar. So far as publication of public notice in the village chavadi is concerned, the Land Acquisition Officer has relied on two documents to substantiate the said publication. Those are Panchanama (Mahazar) dated 23-5-1991 (Annexure-F) and the report of the Revenue Inspector dated 31-5-1990 (Annexure-G).
10. So far as the Mahazar is concerned, it merely proves that on 15-5-1990 the substance of notification under Section 4(1) was read over to eight villagers of Jakkur and Shivanahalli villages and nothing more. The English translation of report of the Revenue Inspector dated 30-5-1990 (Annexure-G) furnished by the appellant reads as under.--
"With reference to the above order, notices were served to the farmers of Jakkur and Shivanahalli villages and directed them to file objection if any, on or before 15-6-1990 against 4(1) notification. The above said notification was also published in the notice board of the village accountant. The Mahazar of the villagers was conducted and all the notices served were forwarded for further proceedings".
11. The above report of the Revenue Inspector even remotely does not suggest that the public notice of the notification under Section 4(1) was made by affixation either in the chavadi of the respective villages of Jakkur and Shivanahalli or in the office of the respective grama panchayats.
12. It cannot be disputed that the third mode of the publication of notification cannot be said to have been complied with unless the substance of the notification is published at the convenient places of the locality concerned which as per the Karnataka Amendment and the Statutory Rules should necessarily be affixed in the office of the jurisdictional panchayats, the Deputy Commissioner, the Tahsildar and as also in the village chavadi. In the present case, there is nothing on the record to show that the substance of the notice was published in the village chavadi or in the office of the village panchayat. Therefore, it has to be held that in law there was no publication of notice by the third mode as mandatorily required.
13. Sri N. Narasimha Murthy, learned Senior Counsel appearing for the appellant, has submitted that keeping in view the report of the Revenue Inspector and the Mahazar as referred to above, legal presumption should be drawn as per Section 114(e) of the Evidence Act that the requirement of the third mode of publication was duly complied with. In support of his submission he has relied on the judgment of the Supreme Court in the case of Ajay Krishan Shinghal and Others v Union of India and Others, wherein it has been held thus.--
"It is not the law and could not and would not be the law that publication of the substance of Section 4(1) notification in the locality should be established beyond shadow of doubt and benefit should be extended to the owner or interested person of the land. Obvious thereto, presumption under Section 114(e) of the Evidence Act has been raised that official acts have been properly done unless proved otherwise".
14. The above law of presumption taken note of by the Supreme Court, about the existence of certain facts and due discharge of official acts can be resorted to only if there is at least some material or evidence on record to show that the said official acts have been purported to be done. But in the present case, there is nothing on record to show that substance of the notice was published in the village chavadi or in the office of the village panchayat. Therefore, it has to be held that in law there was no publication of public notice by the third mode as mandatorily required.
15. Notwithstanding the above finding, in the facts of the present case and keeping in view the law laid by the Supreme Court in the cases of Krishi Utpadan Mandi Samiti and Another v Makrand Singh and Others, and in the case of Eugenio Misquita and Others v State of Goa and Others, the ultimate conclusion drawn by the learned Single Judge which led to the quashing of the impugned notification has to be upheld.
16. Section 6 of the Act provides for declaration that the land is required for a public purpose but the proviso to the said section sets out limitation for making such declaration. This section reads as under.--
6. Declaration that land is required for a public purpose.-
(1) xxx xxx xxx:
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 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 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 the public revenues or some fund controlled or managed by a local authority.
17. Sub-section (2) of Section 6 further provides that every declaration shall be published in the Official Gazette and the two dailies having circulation in the locality concerned out of which one shall be in the regional language. It also requires the Collector to cause public notice of the substance of such declaration to be given at convenient place in the said locality. This sub-section also declares the last of the dates of such publication and the giving of the public notice, as the 'date of the publication of the declaration.
18. In Krishi Utpadan Mandi Samiti's case, supra, it has been held that publication in the Official Gazette will be deemed to be date of making of declaration under Section 6 of the Act for the purpose of computation of limitation prescribed under the proviso thereof. So far as sub- section (2) of Section 6 of the Act providing three different modes of publication are concerned, those have been held to be procedural and ministerial acts meant for the purpose of procedure to be followed subsequent to making of declaration. Relying on this judgment in Eugenia Misquita's case, supra, in para 17 it has been held thus.--
"As held in Krishi Utpadan Mandi Samiti's case, supra, mere making of declaration is not enough. The making of declaration under Section 6 is complete for the purpose of clauses (i) and (ii) of the first proviso to Section 6(i) when it is published in the Official Gazette".
19. From the above declaration of law by the Apex Court, for the purpose of ascertaining as to whether in terms of declaration under Section 6 was made within one year from the date of publication of notification under Section 4(1) of the Act or not, we have to take the date of making declaration as the date on which it was published in the Karnataka Gazette i.e., 23-5-1991. If this date is taken to be the date of making declaration under Section 6(1) of the Act, then irrespective of the fact as to whether the date of publication of preliminary notification under Section 4(1) is taken as 12-4-1990, i.e., its publication in the Official Gazette, or 15-5-1990, the date on which the publication is claimed by the third mode, making of declaration will be definitely after expiry of one year from the said dates and as such declaration under Section 6 has to be held as invalid.
20. For the said reasons, the impugned order of the learned Single Judge cannot be interfered with. Accordingly, the appeals are dismissed.