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Judgment
The writ petition is filed challenging the notification issued by the Respondents dated 16-9-1997 u/s 6 of the Land Acquisition Act and for consequential declaration that notification issued u/s 4(1) dated 3-5-1994 as illegal and invalid.
The petitioners are the owners of the premises bearing No. 11-4-660, Mehar Manzil, Red Hills, Hyderabad. The said property was under lease to Respondent No.2. The 1st respondent issued notification u/s 4(1) of the Act in G.O. Rt. No.198, dated 3-5-1994 published in A.P. Gazette dated 10-5-1994 proposing to acquire an extent of 3050 sq. metres. Thereupon 5(A) enquiry was held and the petitioners filed their objections. However, no action was taken. But, however, the 1st respondent issued an errata to Section 4(1) notification published in the Press on 19-5-1995 wherein the area was altered as 3780 sq. metres in the place of 3050 sq. metres originally notified. Questioning the said action of the respondents in issuing errata thereby increasing the extent covered under the original notification u/s 4(1) and also declaration u/s 6 was challenged by the Petitioners in WPNo.13766 of 1995. However, the said writ petition was dismissed by the learned single Judge on 25-3-1997. Against the said order, Writ Appeal No.774 of 1997 was filed and the same was allowed on 11-9-1997. Consequent on the order of the Division Bench, the respondents issued declaration in Memo dated 16-9-1997 u/s 6 of the Act in respect of 3050 sq. metres and the same was published in the Press on 17-9-1997. The said notification is challenged in this writ petition.
It is the case of the petitioners that Section 4(1) notification was published on 3-5-1995 and it was last published on 20-5-1994. Therefore, Section 6(1) declaration should have been made on or before 19-5-1995 i.e., within one year of 4(1) notification. However, the Memo dated : 9-5-1995 (errata) and Section 6 Declaration were published in the press on 19-5-1995. Since the impugned declaration u/s 6 is beyond one year, the notification has to be set aside and consequently Section 4(1) notification dated: 3-5-1994 is also liable to be quashed. On the other hand, the learned Counsel appearing for the Respondents submit that Section 6 Declaration is within time and the same cannot be interfered with and hence he submitted that the writ petition has to be dismissed.
For proper appreciation of the case the following admitted facts can be taken note of.
The Government issued notification in G.O. Rt. No.199 proposing to acquire an extent of 3050 sq. metres forming part of the premises bearing No. 11-4-660, Mehar Manzil, Red Hills, Hyderabad and the said notification was published in the Press on 10-5-1994. It is also admitted last of the publication was 20-5-1994. Later Government issued errata dated: 9-5-1995 stating that in the notification dated: 3-5-1994 in the place of 3050 sq. metres, an extent of 3780 sq. metres to be substituted. Aggrieved by the said order, earlier writ petition was filed challenging the errata dated: 9-5-1995 to 4(1) notification dated: 3-5-1994 as well as the draft declaration dated: 19-5-1995 including 4(1) notification. However, in the Appeal it was observed inasmuch as, no enquiry was conducted in respect of 700 sq. metres which was sought to be acquired by an errata, the petitioners were denied the opportunity to make the objections in respect of the extended extent. The Bench held that the declaration u/s 6 cannot be made in respect of the land for which there was no valid 4(1) notification. Even though the Bench observed that the errata to 4(1) notification relates back to the original notification, still 5-A enquiry was conducted only in respect of 3050 sq. metres and therefore, no valid declaration could be made u/s 6 in respect of the entire land on 3,780 sq. metres. On this ground the writ appeal was allowed and the draft declaration u/s 6 of the Act as published in the Gazette dated: 19-5-1995 was quashed in respect of the 3,780 sq. metres. Therefore, what emergence from the judgment of the Division Bench is that the draft declaration published in the Gazette dated : 19-5-1995 in respect of 3,780 sq. metres of the land was quashed, keeping intact Section 4(1) notification issued in G.O. Rt. No.198, dated : 3-5-1995. Basing on the order of the Division Bench in the writ appeal referred to above, the Government issued notification dated: 16-7-1997 u/s 6 of the Act. It is not in dispute that 6(1) notification was published within one year from the date of the last of the publication of notification u/s 4(1). As already stated, the last of the publication u/s 4(1) was 20-5-1994. The Division Bench also held that errata related back to the original notification, but, however, quashed the 6(1) declaration for 3,780 sq. metres. But now the 6(1) declaration is only to the extent of 3050 sq. metres. It is the contention of the learned Counsel for the petitioners Mr. Vitas V. Afzulpurkar that the impugned notification is beyond time stipulated in Section 6 of the Act and therefore the said notification has to be set aside. He further submits that 6(1) declaration dated: 19-5-1995 was challenged in the writ petition and interim stay was granted by this Court only on 5-7-1997 and therefore by that dale there was no 6(1) notification as far as the extent of 3050 sq. metres was concerned and the notification relating to 3,780 sq. metres issued on 19-5-1995 was quashed. He relies on the decision of the Supreme Court reported in Oxford English School Vs. Government of T.N. and Others, a . On the other hand the learned Counsel for the 2nd respondent relies on the later decision of the Supreme Court reported in N. Narasimhaiah v. State of Karnataka, 1996 (2) Scale 170.
For proper appreciation of the case, it is necessary to extract clause 6 of the Land Acquisition Act, which reads thus:
"Declaration that lands is required for a public purpose :--(1) Subject to the provisions of Part VII of this Act, when the appropriate Government is satisfied, after considering the report, if any, made u/s 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 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 5-A, sub-section (2):
Provided that no declaration in respect of any particular land covered by a notification u/s 4, subsection (1),
(ii) published after the commencement ofthe land Acquisition (Amendment) Act, 1984, shall be made after the expiry of one year from the date of the publication of the notification.
.................................................. (not relevant for the purpose of this case.)
A bare reading of the above said provision would indicate that Section 6 notification has to be issued within one year from the date of the Section 4(1) notification. It has to be now considered whether the notification issued by the Government on 16-9-1997 is within the limitation prescribed u/s 6. In Oxford English School''s case (supra), the notification issued by the authority dated: 24-8-1982 was published in the Gazette on 8-9-1982 and declaration u/s 6 was made on 19-12-1983. The notification was published in the Gazette on 15-2-1984. On 13-8-1984 Sections 9 and 10 notices were served. Till April, 1987 no Award was passed. At that point of time, writ petition was filed. Interim stay of dispossession was granted by the High Court. The Division Bench set aside the acquisition proceedings after stage of 4(1) notification and directed fresh enquiry u/s 5-A of the Act. It may be noted that in that case the enquiry u/s 5-A was dispensed with. The Division Bench further directed that if the Government decides to proceed with the acquisition, it shall issue Section 6 notification within six months from the date of judgment and the Award shall be passed within four months from thereafter. Aggrieved by the said order of the Division Bench, the matter was carried to the Supreme Court. The question which arose before the Apex Court was whether a fresh declaration u/s 6 can be made in respect of any land notified u/s 4(1) by notification dated: 24-8-1982 after the expiry of 3 years from the date of the publication of the notification u/s 4(1). The Supreme Court answering the issue in negative, observed that explanation 1 to the proviso which provides that in computing the period of three years the period during which any action or proceeding to be taken, pursuant to the notification u/s 4(1) is stayed by an order of the Court shall be excluded. In that case, the stay was obtained from the High Court on 20-4-1987 i.e., beyond the expiry of 3 years. Therefore, the Supreme Court held that the High Court could not have given any directions permitting the issuance of the declaration u/s 6 within six months and also for passing the Award within 4 months. Later in N. Nurasimhaiah''s case (supra), similar situation arose before the Supreme Court. In that case, declaration was made u/s 4(1) on 22-1-1987, and Section 6 declaration was made on 24-6-1987. The writ petition was filed challenging the emergency powers u/s 17(4) dispensing with the enquiry, the writ petition was partly allowed, declaration dated: 24-6-1987 published on 6-8-1987 was quashed. The authorities were directed to continue the acquisition proceedings from the stage of the preliminary notification u/s 4(1). Thereafter 5-A enquiry was conducted and when declaration was published on 13-5-1989, again the validity of the declaration was questioned by the Land owners. The said writ petition was allowed and the matter was carried before the Division Bench and writ appeal filed by the Government was also allowed. Thus, setting-aside the order of the learned single Judge upholding the declaration published u/s 6 of the Act. The Division Bench held that since 6 declaration was quashed in the first instance, the limitation of one year would not apply. It further held that the view that the declaration u/s 6 was still required to be published from the date of the notification u/s 4(1) was not correct in law. The Supreme Court, after considering the Oxford English School''s case (supra) held that the running of the limitation should be counted from the date of the order of the Court received by the Land Acquisition Officer and the Declaration could be published within one year from that date, and such an interpretation is consistent with the scheme of the Act, para 16 is extracted below:
"We are of the opinion that running of the limitation should be counted from the date of the order of the Court received by the Land Acquisition Officer and declaration is published within one year from that date. It would be consistent with the scheme of the Act and it would subserve the public purpose. Parliament amended the Act and prescribed limitation since the acquisition proceedings were unduly delayed for years and the owners of lands were put to hardship. If operation of limitation under clause (ii) of first proviso to Section 6(1) is not applied, we would come back to square and defeat the legislative purpose of limitation prescribed under the Act. The Government is bound under the order of the Court to hold an enquiry u/s 5-A. Thereafter, if the Government still opines that the land is needed for publication purpose, declaration u/s 6 should be published within one year as indicated above. This interpretation would render judicial review efficacious and meaningful and public purpose subserved and the aggrieved owner would get an opportunity to vindicate his grievance. Thus, we hold that the limitation prescribed in clause (ii) of (he first proviso to sub-section (1) of Section 6 would apply to publication of declaration u/s 6(1) afresh. If it is published within one year from the date of the receipt of the order of the Court by Land Acquisition Officer, declaration published u/s 6(1) would be valid."
In the instant case Section 6 declaration was published within time. Yet it was sought to be challenged on the ground that the extent shown in 4(1) notification was different than what was notified in 6 declaration. It is true that excess extent was notified basing on the errata. The Division Bench only quashed Section 6 declaration dated: 19-5-1995 in respect of 3780 sq. metres of land. Thus, Section 4(1) notification is survived from challenge. Now the attack is on Section 6 declaration dated: 16-9-1997 issued after the order the Division Bench, and this declaration is only to the extent of 3050 sq. metres conforming to notification u/s 4(1) dated: 3-5-1994. The ratio laid down by the Supreme Court in Oxford English School''s case (supra) is not applicable as in that case it was observed that the limitation of 3 years under clause (1) of first proviso to sub-section (1) of Section 6 could not be complied with. Hence, the notification u/s 4(1) itself was held invalid. On the other hand in the case on hand 4(1) notification was held to be valid. This was noticed by the Supreme Court in Narasimhaiah ''s case (supra) in para 12 saying that "it is true this Court in Oxford English School''s case (supra) in paragraph 7 had held that when declaration u/s 6 was quashed and the notification u/s 4(1) was upheld, the second declaration is required to be published within the same period prescribed in clause (1) of first proviso. In that case, the limitation of three years under clause (i) of the first proviso to sub-section (1) could not be complied with. The notification u/s 4(1) was held to be invalid. Unfortunately, the above distinction was not brought to the notice of this Court when the case was considered and decided."
The Government could have proceed with the enquiry u/s 5-A in respect of remaining land. But, however, it decided only to acquire original extent of 3050 sq. metres. The Supreme Court had categorically held that when once 6 notification was set aside keeping intact 4(1) notification permitting the Government to conduct 5-A enquiry, the limitation starts from the date of receipt of the order of the Court by the Land Acquisition Officer and he is required to issue declaration u/s 6 within one year. Therefore what emerges from the judgment is that when once Section 6 declaration is quashed it is always open for the Land Acquisition Officer to conduct enquiry u/s 5-A and issue fresh declaration u/s 6 within one year from the date of the receipt of the order of the Court. So also it is equally open to the Land Acquisition Officer to issue fresh declaration, without recourse to Section 5-A enquiry duly rectifying the defects if any as pointed out by the Court, while setting aside Section 6 declaration of first instance with one year from the date of receipt the order of the Court by the Land Acquisition Officer.
Thus, considered from the above point of view, I find that the impugned declaration does not suffer from any infirmity. Accordingly, the writ petition is dismissed. No costs.