Karnataka High Court
Bapuji Education Society, Tumkur vs State Of Karnataka And Others on 4 February, 1998
Equivalent citations: 1999(4)KARLJ155
Author: R.P. Sethi
Bench: R.P. Sethi, V. Gopala Gowda
JUDGMENT R.P. Sethi, C.J.
1. Notification dated 28-7-1987 published in the Karnataka Gazette dated 29-10-1987 issued under Section 6(1) of the Land Acquisition Act, 1894 (hereinafter called the "Act") along with notification issued under Section 4(1) of the Act was quashed by the learned Single Judge vide the order impugned in this appeal solely on the ground of the declaration under Section 6 of the Act having been published after the statutory period provided under clause (i) of Section 6(1) of the Act. The order of the learned Single Judge is stated to be against the provisions of law, the scheme of the Act and the mandate of the Supreme Court in Khadim Hussain v State of Uttar Pradesh.
2. While dealing with the scope, purpose and object of the publications contemplated under Sections 4 and 6 of the Act, a Division Bench of this Court in the case of Karnataka Housing Board, Bangalore v State of Karnataka, has held:
"The purpose and object of publication of the notifications under Sections 4 and 6 of the Act is to afford the affected person an opportunity to show cause against the proposed action in accordance with the provisions of the Act. Even though the provisions of these sections are mandatory yet are not required to be interpreted on a hyper technical and sensitive pleas. A distinction has to be made between the words 'making' the declaration and 'publication' which are not synonymous. The starting point of limitation for the purpose of Section 6 is the date of the publication of notification under Section 4(1) and for the purpose of Section 11-A the publication of the declaration under Section 6. In other words, the starting point of the limitation for the purpose of Section 6 is the date of publication of the notification under Section 4 and the point is making of the declaration, as distinguishable from its publication. Similarly, the starting point of limitation for the purposes of Section 11 of the Act would be the date of the publication of the declaration under Section 6 and end point would be the making of the award. There is no dispute that the date of the publication of the notifications and declaration shall be the last of the dates of the publication of the notification or the declaration in the manner prescribed under the aforesaid two sections. Making of declaration under Section 6 means the signing of the declaration by the competent authority and publication of the declarations is the follow-up action which is resorted without loss of time. Time limit provided under sub-Section (1) of Section 6 shall not be applicable to the publication of notification under sub-section (2). Dealing with such an argument, Mrs. Sujatha Manohar (as her Lordship then was) speaking for the Division Bench in the case of Shivgonda Balgonda Patil and Others v Director of Resettlement and Others held.-
"The first contention of the petitioners is to the effect that the notification under Section 6 of the Land Acquisition Act has been published more than 3 years after the notification under Section 4 and hence this notification is bad in law and his land cannot be acquired. Under Section 4 of the Land Acquisition Act the manner of publication of a notification under Section 4 is prescribed. It is not in dispute that in the present case notification under Section 4 was published on 1-9-1983.
Under Section 6(1) when appropriate Government or the Commissioner 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, a declaration shall be made to that effect under the signature of a Secretary to such Government or of some officer duly authorised under Section 6 which is made under the signature of Secretary or an Officer duly authorised as per Section 6(1) was in the present case made on 20-8-1986, that is to say, within k-3 years of publication of the notification under Section 4 of the Land Acquisition Act. The proviso to Section 6 on which the petitioners rely states:
"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, but before the commencement of the Land Acquisition (Amendment) Act, 1894, shall be made after the expiry of three years from the date of the publication of the notification".
Clearly, therefore, no declaration under Section 6 can be made after the expiry of 3 years from the date of publication of notification under Section 4. The petitioners, however, contend that what is required to be considered in this case is not the date on which the declaration was made under Section 6 but the date on which the declaration under Section 6 was published. This submission is contrary to the language of the proviso which clearly provides only about the declaration being made after the expiry of 3 years. In fact, Section 6, subsection (1) does not deal with publication of the notification under Section 6 at all. The provisions for publication are in Section 6, sub-section (2). This submission, therefore, of the petitioners must be rejected".
Dealing with such a notification in the case of Deepak Pahwa v Lt. Governor of Delhi and Others, it was held that the time gap between the two notifications would not be fatal unless it is shown to be lacking bona fides or resulting in prejudice to one of the parties.
However, on the basis of the aforesaid judgments, it cannot be said that the publication contemplated under the Act is directory and not mandatory. Failure to make requisite publication within the statutory period would render the acquisition liable to be quashed, but such requirement of publication has to be considered in the context and under the circumstances, as noted herein above".
3. In order to dissuade us to reiterate the position of law settled in Writ Appeal No. 3156 of 1997, Sri M.N. Hegde, learned Counsel appearing for the respondents has referred to the following judgments of the Supreme Court.-
1. Krishi Utpadan Mandi Samiti and Another v Makrand Singh and Others.
3. Eugenia Misquita and Others v State of Goa and Others.
Before adverting to appreciate the dictum of the Apex Court in the aforesaid judgments, a cursory look is required to be had in the earlier pronouncement of the Apex Court. In Khadim Hussain's case, supra, a four Judges Bench of the Supreme Court while dealing with the Land Acquisition (Amendment and Validation) Act, 1967 held that it was the declaration which was required to be made within the statutory period and not its publication. While referring to the provisions of Sections 4 and 6 which were pari materia with the provisions of the present Act, the Apex Court held:
"Section 4(2) of the Land Acquisition (Amendment and Validation) Act, 1967, lays down:
"4(2) Notwithstanding anything contained in clause (b) of subsection (1), no declaration under Section 6 of the principal Act in respect of any land which has been notified before the commencement of the Land Acquisition (Amendment and Validation) Ordinance, 1967, under sub-section (1) of Section 4 of the principal Act, shall be made after the expiry of two years from the commencement of the said ordinance".
In the case before us, the first notification under Section 36 of the Act, having been equated with the preliminary notification under Section 4 of the Land Acquisition Act and published on 13th March, 1995, the "declaration" under Section 6 had to be made within two years of the coming into force of the ordinance on 20th January, 1967. Neither the declaration nor the notification have been placed before us. Nevertheless, the contention on behalf of the appellant is that, as the notification under Section 32(1) of the Adhiniyam took place on 3rd May, 1969, no declaration under Section 6 of the Land Acquisition Act could be made on this date, the last date for such declaration being 19th January, 1969. No doubt both sides are agreed that, as the judgment of the High Court reveals, the date of the notification under Section 32(1) of the Adhiniyam is 3rd May, 1969. We, however think that the appellant's contention before us ignores the very apparent distinction made in the provisions of Section 6 of the Land Acquisition Act between a declaration and its notification.
Section 6 of the Land Acquisition Act reads as follows:
"6(1) Subject to the provisions of Part VII of this Act, when the appropriate Government is satisfied, after considering the report, if any, made under Section 5-A, sub-section (2), that any particular land is needed for a public purpose or for a Company, a declaration shall be made to that effect under the signature of a secretary to such Government or of some officer duly authorised to certify its orders, and different declarations may be made from time to time in respect of different parcels of any land covered by the same notification under Section 4, sub-section (1), irrespective of whether one report or different reports has or have been made (wherever required) under Section 5-A, sub-section (2)":
Provided that no declaration in respect of any particular land covered by a notification under Section 4, sub-section (1), published after the commencement of the Land Acquisition (Amendment and Validation) Ordinance, 1967, shall be made after the expiry of three years from the date of such publication:
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, (2) Every declaration shall be published in the Official Gazette, and 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 manner hereinafter appearing".
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 mentioned in Section 6(1), set out above, differs from its notification 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.
A look at the amendment introduced by Section 4(2) of the Land Acquisition (Amendment and Validation) Act, 1967, shows that it is the declaration which has to take place within two years of the expiry of the commencement of the Ordinance which came into force on 20th January, 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 specific 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".
4. In Deepak Pahwa's case, supra, as already noted, the Apex Court held that Section 4 did not prescribe that public notice of the substance of the notification should be given in the locality simultaneously.
The time factor was held not to be vital element. There was no warrant for reading the words 'simultaneously' or 'immediately thereafter' for the purpose of publication. Every time gap between the publication in the Gazette and the public notice in the locality was not fatal to the acquisition. The Court noticed the circumstances which could prevent the authorities from publishing the notification within the limits of the statutory period. The Court held that there could not be any general principle that acquisition would be regarded as void if the notification was not published immediately. The consistent view of the Supreme Court appears to be that unless prejudice is shown to have been caused to the claimant, the mere delay in publication of the notification or declaration would not render the acquisition proceedings as void being liable to be quashed.
5. A Division Bench of this Court in Mahalakshmi Keshava Rao v State of Karnataka and Another, under similar circumstances had held:
"A declaration made under Section 6 of the Land Acquisition Act that a land is needed for a public purpose made within a period of three years from the date of publication of preliminary Notification under Section 4 of the Act is valid and it does not become invalid even if it is published in the Official Gazette after the expiry of three years from the date of publication of the preliminary notification".
6. The facts of the case and the point of law adjudicated in Krishi Utpadan Mandi Samiti's case, supra, are distinct and distinguishable from the facts of the present case. In that case the acquisition was challenged by the owners of the land on the ground that the declaration under Section 6 was published after the expiry of three years. The contention found favour with the High Court of Allahabad which allowed the writ petitions. The Samiti for whose benefit the lands had been acquired filed the appeals in the Supreme Court by Special Leave which were allowed and the petitions filed by the owners were directed to be dismissed. The Court held that the consistent policy of the Act was intended to giving teeth to the operational efficacy to the scheme of the Act and public purpose the Act sought to serve. The procedural ministerial acts prescribed under sub-section (2) were only for the purpose of procedure to be followed. The Court declined to agree with the argument put forth on behalf of the Acquiring Authority that the date of the making of the declaration by the Secretary to the Government or the authorised officer was the date for computing a period of three years. The Court also rejected the argument of the learned Counsel for the owners, that the publication of the substance would be the last date from which the period of three years was to be computed, and held 'acceptance of either contention would easily defeat the public policy under the Act by skillful manner of the management with the lower level officers'. Under the facts of the case it was held, 'the High Court, therefore, was not right in its conclusion that since declaration was published in the newspapers on 4-6-1987, after expiry of three years, a declaration under Section 6(1) and the notification under Section 4 stood lapsed. It is clearly illegal'.
7. The reliance of the learned Counsel on the case of Senjeevanagar Medical and Health Employees Co-operative Housing Society, supra, is also misplaced. In that case the Court in fact and substance was dealing with the notification issued under Section 4 of the Act and not Section 6. The writ petitioners in that case had challenged the notification issued under Section 4 on the ground that as it was not simultaneously published in the Gazette and in the locality, the acquisition proceedings were liable to be quashed. The Andhra Pradesh High Court had allowed the claim of the owners against which the special leave petition was filed. Reference was made to Deepak Pahwa's case, supra, to submit that the judgment of the Full Bench of that High Court in K. Yadaiah v Government of Andhra Pradesh , had been over-ruled. In that context it was observed:
"This Court had held that Section 4 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. They are two steps required to be taken under Section 4 before taking further steps under sub-section (2). The time factor is not a vital element and there is no warrant to read the words "simultaneously" or "immediately thereafter" in Section 4. They are not required to be done simultaneously or immediately thereafter. Contemporaneity may involve a gap of time and by the very nature of 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 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 long as it may lead one to the prima facie conclusion of lack of bona fides in the proceedings for acquisition. It was held that when the Government exercises power under Section 17(4), it obviously feels that urgency is such that it does not brook delay and, therefore, the Government directs that declaration under Section 6 and followed by notice under Section 9. Delay of eight years on the part of the tardy officials to take further action in the matter of acquisition is not sufficient to nullify the urgency which existed at the time of issuing the notification and to hold that there was never any urgency. This Court overruled the Full Bench judgment in Yadaiah's case, supra, and approved of the Division Bench judgments of the Andhra Pradesh High Court, apart from other cases".
Thereafter the Court dealt with the purpose and object of Amendment Act No. 68 of 1984 and observed that the object of the amendment was to put the owner or interested person on a notice of acquisition of land for public purpose. It was observed that in case of enquiry under Section 5-A it should be done and all steps should be taken within one year from the last date of publication of notification under Section 4(1), otherwise the acquisition would stand lapsed. The Court further noted that even thereafter award should be made within two years from the date of publication of Section 6 declaration. The maximum outer limit for publication of declaration under Section 6 was observed to be one year from the date of last of the publication under Section 4 of the Act. The Court further held:
"It is to remember that the acquisition was to provide housing accommodation to the poor. The State Government always exercises the power of publishing the notification under Section 4(1) and the declaration under Section 6 for acquiring the properties in urban areas. The enquiry under Section 5A was not dispensed with. The declaration under Section 6 was published only after the enquiry under Section 5-A had been conducted as in the present case. The need, therefore, to make simultaneous local notice of the substance was not the requirement of law and was so declared by this Court in Deepak Pahwa's case, supra, and also several decisions of various Division Benches of the High Courts. The Full Bench judgment was primarily in relation to the lands in rural areas to provide house sites to the poor. The Full Bench also did not notice the distinction since common question was argued and the main concentration was only of the acquisitions for providing house sites to the poor. The same was repeated in Mohammed Amri Khan's case, supra. C.K. Narayana Chary's case, supra, closely followed the heels of Mohammed Amri Khan's case, supra. Therefore, the validation Act was not applicable to the acquisition made pursuant to the notification published by the State Government in its State Gazette.
That apart, as facts disclose, the award was made on 24-11-1980 and the writ petition was filed on 9-8-1982. It is not in dispute that compensation was deposited in the Court of the subordinate Judge. It is asserted by the appellant-Society that possession of the land was delivered to it and the land had been divided and allotted to its members for construction of houses and that construction of some houses had been commenced by the date the writ petition was filed. It would be obvious that the question of division of the properties among its members and allotment of the respective plots to them would arise only after the Land Acquisition Officer had taken possession of the acquired land and handed it over to the appellant-Society. By operation of Section 16 the land stood vested in the State free from all encumbrances. In Satendra Prasad Jain's case, supra, the question arose: whether notification under Section 4(1) and the declaration under Section 6 get lapsed if the award is not made within two years as envisaged under Section 11-A? A Bench of three Judges had held that once possession was taken and the land vested in the Government, title to the land so vested in the State is subject only to determination of compensation and to pay the same to the owner. Divesting the title to the land statutorily vested in the Government and reverting the same to the owner is not contemplated under the Act. Only Section 48(1) gives power to withdraw from acquisition that too before possession is taken. That question did not arise in this case. The property under acquisition having been vested in the appellants, in the absence of any power under the Act to have the title of the appellants divested except by exercise of the power under Section 48(1), valid title cannot be defeated. The exercise of the power to quash the notification under Section 4(1) and the declaration under Section 6 would lead to incongruity. Therefore, the High Court under those circumstances should not have interfered with the acquisition and quashed the notification and declaration under Sections 4 and 6 respectively. Considered from either perspective, we are of the view that the High Court was wrong in allowing the writ appeal".
An analysis of the judgment does not support the argument of the learned Counsel for the respondents. The said observations made in the judgment without reference to the facts of the case and earlier position of law settled by the Apex Court could not be made a basis for quashing the acquisition proceedings on the strength of the aforesaid judgment as was wrongly done by the learned Single Judge.
8. The judgment of the Apex Court in Eugenio Misquita's case, supra, in fact supports the view which we had already taken regarding computation of the period for the purpose of Section 6 of the Act. Dealing with similar arguments the Court held:
"According to the learned Counsel, the limitation prescribed under clause (ii) of the first proviso to Section 6(1) has to be construed with reference to the different dates/modes of publication prescribed under Section 6(2) of the Act. In support of this submission, learned Counsel refers to the judgments of this Court rendered on Section 4(1) of the Act holding that the last of the dates of such publication in the series is the relevant date for computing the period of limitation under clause (ii) of the first proviso to Section 6(1).
Let us examine whether the learned Counsel is right in his submission. As seen from the above extracts of relevant provisions, while Section 4(1) commands publication of notification under that section, Section 6 speaks of the declaration being made to the effect that any particular land is needed for public purpose or for a company. There are judicial decisions that have interpreted the word "made" to mean 'published' for the reasons stated in those decisions. Therefore, strictly speaking, but for those judicial decisions the date of making of the declaration under Section 6(1) will be the relevant date for reckoning the period of limitation. However, in the interest of the general public, the Courts have taken the view that the declaration made will stand accomplished only when it is published. This publication has, therefore, nothing to do with the publication referred to in Section 6(2) of the Act which is for a different purpose, inter alia, for reckoning the limitation prescribed under Section 11-A of the Act. This construction is supported by the language employed in Section 6(2) of the Act. In particular, the word 'hereinafter' used in Section 6(2) will amply prove that the last of the series of the publication referred to under Section 6(2) is relevant for the purposes coming thereafter, namely, for making award under Section 11-A. The language employed in second proviso to Section 6(1) also supports this construction. Therefore, the contention of learned Counsel cannot be accepted".
The facts of that case were that a notification under Section 4(1) of the Act for acquiring land was published on 8-11-1990 which lapsed as no declaration was made in terms of Section 6 of the Act. A fresh notification under Section 4(1) of the Act for the same purpose was made on 23-6-1992 which was published in an English daily on 29-6-1992, in Marathi daily on 2-2-1992 and public notice in the locality was given on 8-7-1992 which was published in Gazette on 6-8-1992. Validity of the notification was challenged in a writ petition on account of the invoking of the provisions of Section 17 of the Act. The High Court allowed the writ petition on 25-11-1992 by directing the claimants to file their petitions under Section 5-A on or before 4-12-1992 and directing the Acquiring Authority to decide the aforesaid petitions on or before 8-12-1992. After complying with the directions of the High Court a declaration under Section 6 of the Act was made on 3-8-1993 which was published in the Official Gazette on 5-8-1993, in Marathi daily on 6-8-1993 and English daily on 7-8-1993. Public notice was given on 28-8-1993. Under these circumstances, the claimants challenged the validity of the declaration under Section 6 on the ground that the publication of the declaration was beyond one year taking 28-8-1993 as the date of publication and, therefore, the acquisition proceedings had lapsed. The High Court, in the light of its earlier Division Bench judgment dismissed the writ petitions against which the special leave petition was filed, which was rejected by the Apex Court in the aforesaid case. The Court held that, 'we have no hesitation to hold that the declaration published under Section 6 of the Act was well within one year and the challenge to the same has rightly been rejected by the High Court'. It further held that mere making of declaration was not sufficient unless it is published and that the date of publication of declaration was a relevant consideration for determining the effect of Section 11-A upon the acquisition proceedings. It was no where held that the publication of the declaration after the statutory period would render the acquisition proceedings void or having lapsed.
9. To support his submission the learned Counsel for respondents 3 and 4 submitted that non-publication of the declaration within statutory period was likely to defeat the object of the amendment made in the Act requiring such publication. It is submitted that the authorities may sleep over the matter and after making a declaration may not publish it for years together, thus creating uncertainty besides putting the owners to disadvantageous position on account of non-completion of the acquisition proceedings as a consequence of such non-publication. The arguments even if accepted, at the most would result in the lapse of the proceedings under Section 11-A of the Act. The hypothetical proposition of alleged apprehension of non-publication of the declaration within the statutory period cannot in any way affect the proceedings for the purpose of Section 11-A of the Act. When we say that non-publication of the declaration by itself under Section 6 would not render the acquisition proceedings liable to be quashed, we are conscious of the fact that immediate though not simultaneous publication of notice under Section 4 and publication under Section 6 is the mandate of law. If there is a sufficient time gap between issuance of notification or declaration and their publication, the same can be held to be adversely affecting the interests of owners resulting in prejudice warranting the issuance of appropriate directions for quashing of the acquisition proceedings or declaring them to have lapsed. Dealing with modes of publication, this Court in Ramachandrappa and Others v State of Karnataka and Others, held:
"The modes of publication contemplated under the section are simultaneous. It may however be mentioned that simultaneous publication cannot be said to mean publication on the one and the same day. It means publication within a reasonable time after the declaration is made under sub-section (1) of Section 6 of the Act. The publication by means of the three modes noted herein above is mandatory. Last date of such publication shall therefore be deemed to be the last date of publication of notice in any of the aforesaid 3 manners. However, if there is an unexplained or uncalled for or mala fide delay in publication of the notice in any of the manners prescribed, the period of limitation may be deemed to commence from the date of admittedly earlier valid publication. The delay in mala fide publication of a notice may also render the whole of acquisition liable to be quashed. The provisions of Section 6(2) are almost identical as are prescribed for the publication of the notification under Section 4(1) of the Act".
10. Such a position of law was again reiterated by a Division Bench of this Court in Narasimhalu and Another v State of Karnataka and Others, wherein it was held:
"The emphasis thus throughout has been the publication of Section 4(1) notification by three modes of publication as required thereunder within a reasonable time. If the time gap is too large and has remained unexplained, it may be necessary, as observed by the Supreme Court in Deepak Pahwa's case, supra, to probe further to discover if there is any cause for the delay and if the delay has caused prejudice to any one. As observed by a Division Bench of this Court in Ramachandrappa's case, supra, if there is any unexplained or uncalled for or mala fide delay in publication of the notice in any of the manners prescribed, the period of limitation may be deemed to commence from the date of admittedly earlier valid publication".
To the same effect is another Division Bench judgment in W.A. No. 9704 of 1996, decided on 30-5-1997.
11. In view of the decision in Khadim Hussain and Deepak Pahwa cases, supra, of the Supreme Court and various other judgments referred to herein above, we have come to the conclusion that there is no ground to reconsider the judgment of this Court pronounced in Karnataka Housing Board's case, supra, insofar as it relates to the interpretation of Sections 4 and 6 regarding publication of the notice and the declaration. We reiterate the same legal position with a clarification that though delay in publication of the notification and declaration after the period prescribed may not be fatal yet where such publication is shown to have not been made without further delay resulting in prejudice, the Court would be justified in quashing the acquisition proceedings or declaring them to have lapsed.
12. In view of the legal position as noticed herein above, we are of the opinion that the learned Single Judge was not justified in allowing the writ petition and quashing the notifications issued under Sections 4 and 6 of the Act relating to the acquisition of land of respondents 3 and 4. Accordingly the appeal is allowed and the order of the learned Single Judge is set aside. Writ petition filed by respondents 3 and 4 shall be deemed dismissed and the rule issued discharged. Costs made easy.