B.V.R. Subramanyam vs The District Collector

A.V. Sesha Sai, J.—This writ petition, under Article 226 of the Constitution of India, calls in question the notification issued by the first respondent herein u/s 4(1) of the Land Acquisition Act, 1894, proposing to acquire the petitioner''s land admeasuring Ac. 4-82 cents situated in Sy. No. 350, Panchalingala village, Kurnool Mandal, Kurnool District. Heard Sri P. Bhakthavastsal, learned counsel for the petitioner and the learned Government Pleader for Land Acquisition.

The facts, which are essential and free from dispute, are as follows:

The District Collector/first respondent herein issued a notification under Sub-Section (1) of Section 4 of the Land Acquisition Act, 1894 (hereinafter called ''the Act'') for the purpose of acquiring the above said land of the petitioner herein. The said draft notification was published in the Gazettee on 12.10.2006 and in two news papers viz., Andhra Bhoomi and Neti Manadesam on 23.10.2006 and in the locality on 02.11.2006. In response to the notice issued by the respondent authorities, asking the petitioner to submit objections u/s 5-A of the Act, the petitioner herein submitted his objections and after consideration of the same, the District Collector, Kurnool, passed the orders vide proceedings in Rc. No. K. 158/07 dated. 11.2007, rejecting the objections filed by the petitioner herein. Subsequently, the respondent authorities issued a draft declaration u/s 6 of the Act and the same was published in Kurnool Gazette on 24.11.2007, in Vaartha and Krishna Patrika newspapers on 10.12.2007 and in the locality on 17.11.2007.

In the present writ petition, apart from the other submissions and contentions including the one touching the availability of alternative lands, it is the specific case of the petitioner herein that the proceedings are vitiated and the notification issued u/s 4(1) of the Act is liable to be quashed in view of the failure on the part of the respondent authorities in issuing declaration u/s 6 of the Act within one year from the date of 4(1) notification.

At this juncture, it is appropriate to refer to the provisions of Section 6 of the Act, which read as under:

Declaration that land is required for a public purpose.-

(1) Subject to the provision of Part VII of this Act, [appropriate Government] is satisfied, after considering the report, if any, made u/s 5A, 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 declarations may be made from time to time in respect of different parcels of any land covered by the same notification u/s 4, Sub-section (1) irrespective of whether one report or different reports has or have been made (wherever required) u/s 5A, Sub-section (2)]; [Provided that no declaration in respect of any particular land covered by a notification u/s 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 (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 (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 u/s 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 revenues.]

(2) [Every declaration] shall be published in the Official Gazette [and in two daily newspapers circulating in the locality in which the land is situated 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 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 manner hereinafter appearing.

A reading of the above said provisions of law makes it clear that as per Clause (1) of Second proviso to Section 6 of the Act no declaration u/s 6 of the Act shall be made after expiry of one year from the date of publication of the notification.

In the instant case, as per the counter filed by the respondents herein also the last date of publication of 4(1) notification in the locality was 02.11.2006 and the publication of Section 6 declaration in the Gazette was made on 24.11.2007. It is also to be noted that even the District Collector passed the orders of rejection of objections on 20.11.2007 i.e., beyond one year.

At this juncture, it is relevant to refer to the Judgments of the Hon''ble apex Court in Padmasundara Rao and Others Vs. State of Tamil Nadu and Others, , Ashok Kumar and Others Vs. State of Haryana and Another, , Anil Kumar Gupta Vs. State of Bihar and Others, and Devender Kumar Tyagi and Others Vs. State of U.P. and Others, .

In Padma Sundara Rao and Others v. State of T.N. and Others (supra), the Hon''ble Apex Court at paragraph 16, held as follows:--

The plea relating to applicability of the stare decisis principles is clearly unacceptable. The decision in K. Chinnathambi Gounder and Another Vs. The Government of Tamil Nadu and Another, was rendered on 22-6-1979 i.e. much prior to the amendment by the 1984 Act. If the legislature intended to give a new lease of life in those cases where the declaration u/s 6 is quashed, there is no reason why it could not have done so by specifically providing for it. The fact that the legislature specifically provided for periods covered by orders of stay or injunction clearly shows that no other period was intended to be excluded and that there is no scope for providing any other period of limitation. The maxim actus curiae neminem gravabit highlighted by the Full Bench of the Madras High Court has no application to the fact situation of this case.

In Ashok Kumar and Others v. State of Haryana and Another (supra), the Hon''ble Apex Court at paragraphs 14 to 17, held as follows:--

Proviso (ii) appended to sub-section (1) of Section 6 of the Act clearly debars making of any declaration in respect of any particular land covered by a notification issued under sub-section (1) of Section 4 after the expiry of one year from the date of publication thereof. Explanation (1) appended to the said proviso, however, stipulates that 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 u/s 4(1), is stayed by an order of a court, shall be excluded. On a plain reading of the aforementioned provisions, there cannot be any doubt whatsoever that the period which is required to be excluded would be one, during which the action or proceeding taken was subjected to any order of stay passed by a competent court of law.

Provisions of the Act should be construed having regard to the purport and intent thereof. Section 6 of the Act is beneficent to the landowners.

In Hindustan Petroleum Corporation Ltd. Vs. Darius Shapur Chenai and Others,

The Act is an expropriatory legislation. This Court in State of Madhya Pradesh and Others Vs. Vishnu Prasad Sharma and Others, observed that in such a case the provisions of the statute should be strictly construed as it deprives a person of his land without consent. [See also Khub Chand and Others Vs. State of Rajasthan and Others, and Collector of Central Excise, Ahmedabad Vs. Orient Fabrics Pvt. Ltd., ]

We have noticed hereinbefore that the proviso appended to sub-section (1) of Section 6 is in the negative term. It is, therefore, mandatory in nature. Any declaration made after the expiry of one year from the date of the publication of the notification under sub-section (1) of Section 4 would be void and of no effect. An enabling provision has been made by reason of the Explanation appended thereto, but the same was done only for the purpose of extending the period of limitation and not for any other purpose. The purport and object of the provisions of the Act and in particular the proviso which had been inserted by Act 68 of 1984 and which came into force w.e.f. 24-9-1984 must be given its full effect. The said provision was inserted for the benefit of the owners of land. Such a statutory benefit, thus, cannot be taken away by a purported construction of an order of a court which, in our opinion, is absolutely clear and explicit.

In Anil Kumar Gupta v. State of Bihar and Another (supra), the Hon''ble Apex Court at paragraphs 17, 18, 20 and 21, held as follows:--

The use of the expression "not exceeding three years from commencement of such occupation" leaves no manner of doubt that with effect from 31-1-1979 i.e. the date on which three years'' period counted from 1-2-1976 ended, continued occupation of the appellant''s land by the respondents became illegal per se.

We may now advert to the main question as to whether the declaration issued u/s 6(1) was a nullity because the same was issued after expiry of the period of one year specified in the first proviso (ii) to that section. This issue is no longer res integra and must be treated as settled by the judgments of this Court in Padmasundara Rao and Others Vs. State of Tamil Nadu and Others, , Ashok Kumar and Others Vs. State of Haryana and Another, and a recent judgment in Devender Kumar Tyagi and Others Vs. State of U.P. and Others, In Padmasundara Rao and Others Vs. State of Tamil Nadu and Others, the Constitution Bench unequivocally held that the second proviso to Section 6(1) is mandatory and a declaration issued beyond the period of one year from the last publication of the notification issued u/s 4(1) is nullity. In view of the proposition laid down in these judgments, it must be held that the learned Single judge had rightly held that the declaration issued u/s 6(1) was non est.

The learned counsel for the respondents relied upon the corrigendum dated 1-7-1994 and argued that if the period of one year is counted from the date of corrigendum then the declaration issued u/s 6(1) cannot be treated as beyond the period of one year. We are unable to accept the submission of the learned counsel for two reasons. Firstly, it has not been shown whether the corrigendum had been published in the manner prescribed u/s 4(1). Secondly, the corrigendum was issued only for correcting the typographical mistakes in the gazette publication of the notification issued u/s 4(1). Such corrigendum will relate back to the date on which the notification u/s 4(1) was issued and the same cannot be relied upon for recording a finding that the declaration u/s 6(1) was issued within the period prescribed under the first proviso (ii) to that section.

In the result, the appeal is allowed, the impugned judgment is set aside and the order passed by the learned Single Judge quashing the acquisition proceedings is restored. The respondents are directed to hand over 450 vacant possession of the acquired land to the appellant within a period of eight weeks from today. The parties are left to bear their own costs.

In Devender Kumar Tyagi and Others v. State of Uttar Pradesh and Others (supra), the Hon''ble Apex Court at paragraphs 12 to 14, held as follows:--

The notification u/s 4 has to be published in the manner laid down therein. As against this, u/s 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 L.A. Act. Also, proviso (ii) to Section 6(1) lays down a time-limit within which the 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 L.A. Act.

It is not in dispute that the declaration of the Notification u/s 6 was issued on 18-12-2007. It is also not in dispute that the Notification u/s 4 was issued on 3-7-2006 and the same was published in two daily newspapers in Hindi language on 4-7-2006 having circulation in the locality where the land is situated. Also, the people at Pargana Hapur in Ghaziabad District are well-conversant with the Hindi language. In our considered view, the publication of the notification in two newspapers having circulation in the locality where the land is situated and where people are well-conversant with Hindi amounts to ample compliance with the requirement of the publication u/s 4(1) of the L.A. Act. In view of this, the subsequent publication of English translation of the said Notification u/s 4 in two newspapers on 5-1-2007 is unnecessary and will not assist the respondents to extend the period of limitation envisaged in the proviso to Section 6(1) of the L.A. Act. Hence, the last date of publication for the purpose of Section 4(1) of the L.A. Act, which can be treated as the date of publication, is the date on which, the second Notification u/s 4 was published in the newspaper, that is, 4-7-2006. Therefore, the period of limitation commences from 4-7-2006, which is the date of publication of the Notification u/s 4(1) of the L.A. Act.

If the declaration u/s 6 of the L.A. Act is made before the expiry of the period of one year starting from 4-7-2006, then, only such declaration will be considered as valid for the purpose of the acquisition of land. However, in the present case, the declaration u/s 6 was issued on 18-12-2007 which is clearly beyond the period of limitation of one year as mandated by the proviso to Section 6(1) of the L.A. Act. Therefore, the declaration of notification u/s 6 and its subsequent publications are clearly beyond the period of limitation of one year starting from the date of publication of notification u/s 4 of the L.A. Act.

The ratio laid down in the above referred judgments, clearly mandates that in the event of failure to adhere to the provisions of Section 6 of the Act, the entire proceedings would get lapsed. Therefore, this Court has absolutely no hesitation to hold that the proceedings impugned in the writ petition are liable to be invalidated in view of the language employed u/s 6 of the Act and the principles laid down by the Hon''ble apex Court in the above referred judgments. For the aforesaid reasons and having regard to the provisions of the Land Acquisition Act and the ratio laid down by the Hon''ble apex Court in the above referred judgments, this writ petition is allowed and the proceedings initiated for acquisition of the land of the petitioner herein admeasuring Ac.4-82 cents in Sy. No. 350 of Panchalingala village, Kurnool Mandal, Kurnool District, starting from notification u/s 4(1) of the Act are accordingly invalidated and set aside. As a sequel, the miscellaneous petitions, if any, shall stand closed. No order as to costs.