Beerappa Ganapu Gowda vs Deputy Commissioner

G.T. Nanavati, C.J.—Certain lands came to be acquired by the Government for the purpose of constructing a Bus Stand at Gokarna. A Notification u/s 4(1) of the Land Acquisition Act was issued on 29-3-1992 and was published in the Gazette on 16-4-1992. It was also published in two local daily newspapers on 3rd and 4th April 1992. Individual notices were served on the land holders on 8th May 1992 and a public notice was also affixed at the Chavdi on 18th May 1992. After holding an enquiry u/s 5A of the Act and after consideration of the report by the Government, a Notification/ Declaration u/s 6 of the Act was issued on 4-5-1993. The said acquisition was challenged by the appellants and others by filing Petitions under Article 226 of the Constitution on the ground that the acquisition was at the instance of certain Hoteliers and was actuated by mala fides and therefore, it should be regarded as bad. It was also challenged on the ground that Section 6 Notification was not issued within one year from the date of publication of Section 4(1) Notification. The learned Single Judge dismissed the Petitions as he did not find any substance in any of these two contentions raised before him.

What is contended by the learned Advocate for the Appellants in these Appeals is that the declaration u/s 6(1) of the Land Acquisition Act was not made within one year from the date of publication of Section 4(1) Notification and, therefore, it should be regarded as illegal and void. According to the learned Advocate, the date of publication should be regarded as the date on which Section 4(1) Notification was published in the Gazette. In support of this contention, the learned Advocate for the appellant relied upon the Decision of this Court in SAYYAD SAHEB JADA AND ORS. v. STATE OF KARNATAKA AND ORS. 1987(2) KLJ 108 in which it is held by this Court as follows:

"........The starting date for purpose of finding out as to whether the final notification is within the time permitted by the Section is the date of publication of the Preliminary Notification in the official gazette as expressly stated in the Section and not the date of the issue of the notification....."

In that case, the question as to whether the date of publication of Section 4(1) Notification in the Official Gazette should be regarded as the date of publication or any subsequent date should be regarded as the date of publication, did not arise. In that view of the matter, the said Decision cannot be regarded as an authority for the proposition which is canvassed by the learned Advocate for the appellants.

The learned Advocate also relied upon the Division Bench Decision of this Court in W.Ps.Nos. 6600 to 6604 of 1989, decided on 23rd October 1990 Ganapu Boorappa v. State of Karnataka and Ors.. In that case also, a similar observation is to be found. Therein, it is observed that the date of publication was the date on which the Preliminary Notification was published in the Official Gazette.

As the question raised before us did not arise for consideration in either of the aforesaid two Decisions, they cannot be regarded as binding precedents. Moreover, in those cases, no reference was made to Section 4(1) of the Land Acquisition Act, 1894 (for short, the ''Act''), which provides as under:

"4. Publication of preliminary notification and powers of officers thereupon.- (1) Whenever it appears to the appropriate Government that land in any locality is needed or is likely to be needed for any public purpose or for a company, a notification to that effect shall be published in the Official Gazette and in two daily newspapers circulating in that locality of which at least one shall be in the regional language and the Collector shall cause public notice of the substance of such notification to be given at convenient places in the said locality (the last of the dates of such publication and the giving of such public notice, being hereinafter referred to as the date of the publication of the notification)."

It is not in dispute that this provision applies in the State of Karnataka. If that is so, in view of the clear mandate of the Legislature, the last of the dates of Prescribed publication and the giving of Prescribed public notice has to be regarded as the date of publication of the Notification. None of the two Decisions referred to above can be regarded as binding precedent, particularly when the relevant provision of law was not considered at all. Realising this difficulty the learned Advocate further submitted that the parties in W.P.Nos. 6600 to 6604 of 1989, and the parties in these proceedings are the same and therefore, the earlier Decision should be regarded as binding between the parties even in these proceedings also. In those Petitions, the Notification u/s 4(1) of the Act, was issued on 29.12.1987 and the Notification u/s 6(1) was issued on 21.1.1988. In these proceedings, we are concerned with a different set of Notifications. Moreover, as pointed out earlier, in that case, no dispute had arisen as to whether any other date should have been regarded as the date of publication for notification, and there is nothing on record to show whether public notices were given after publication of Section 4(1) Notification in the Official Gazette, or on the same date. Since there was no dispute that the last date of publication was to be regarded as the date of publication of Section 4(1) Notification in the Gazette, the said Decision cannot be regarded as binding on the point which is now raised before us. Again, as pointed out earlier, the amended provision contained in Section 4 of the Act, was not taken note of at all while recording that finding. For all these reasons, the contention raised on behalf of the appellants cannot be accepted.