Kashmir Singh and Others vs State of U.P. and Others

K.N. Singh, J.—Both these petitions involve common questions of law and fact. We are disposing of both these petitions by a common order at the admission stage with the consent of the counsel for the parties.

The petitioners are owners of the plots situate in village Sonera, tehsil Kichha district Nainital. Their land is being acquired under the provisions of the Land Acquisition Act, 1894. A notification u/s 4, Land Acquisition Act, 1894, (hereinafter referred to as ''the Act'') was issued on 6-5-1985 declaring that the land in question including the petitioners'' land was needed for a public purpose, namely, for construction of market yard for the Krishi Utpadan Mandi Samiti, Kichha. The notification further contained a declaration that since there was urgency for the acquisition, the provisions of Sections 17(1-A) and 17(4) shall apply and the provisions of Section 5A of the Act shall not apply. On the same date, namely, May 6, 1985, another notification was issued by the State Government u/s 6 of the Act making declaration that the land in dispute was required for a public purpose, namely, for the construction of market yard for the Krishi Utpadan Mandi Samiti, Kichha. This notification also contained a direction as contemplated by Section 17(1) and (1-A) of the Act authorising the Collector to take possession of the land even before the declaration of the award u/s 11 of the Act. Both the aforesaid notifications were published on the same day, namely, 22nd May, 1985. Aggrieved, the petitioners filed these two petitions challenging validity of the notifications.

Learned counsel for the petitioners urged that in view of the amendments introduced by the Land Acquisition (Amendment) Act, 1984 (Act No. 68 of 1984), the declaration as contemplated by Section 6 of the Act cannot be made on the same day on which the notification u/s 4 of the Act is published instead now after the amendment the notification u/s 6 of the Act could only be issued after the notification u/s 4 of the Act is published. We find merit in this submission. Prior to the amendment of the Act by the Amending Act No. 68 of 1984 it was permissible for the Government to issue notification u/s 4 and further to make declaration as contemplated by Section 6 of the Act simultaneously and it was further permissible to publish both the notifications simultaneously as was held by the Supreme. Court in Smt. Somavanti and Others Vs. The State of Punjab and Others, .

Normally after the issue of notification u/s 4 of the Act objections are invited as contemplated by Section 5A of the Act and after holding enquiry the Collector submits report to the Government and on consideration of the same the Government makes declaration as contemplated by Section 6 of the Act. Possession of the land is taken after the award is declared. But in case of urgency where the Government considers it necessary to acquire the land immediately and to take its possession even prior to making of the award it has power to dispense with the provisions of Section 5A of the Act. Section 17 of the Act confers special powers on the Government and the Collector in cases of urgency for immediate taking of the possession after the issue of the notification u/s 6 and without complying with the provisions of Section 5-B of the Act. Section 17(4) prior to its amendment conferred power on the Government to direct that the provisions of Section 5A shall not apply, if in its opinion the provisions of Sub-sections (1), (1-A) and (2) of Section 17 were applicable. On the issue of such a direction by the Government a declaration could be made as contemplated by Section 6 in respect of the land at any time after the publication of notification u/s 4 of the Act. Thus, prior to the amendment of Section 17(4) by the Amending Act No. 68 of 1984, a declaration as contemplated by Section 6 of the Act could be made at any time after the publication of the notification u/s 4 of the Act, but after the amendment of Section 17(4) a declaration as contemplated by Section 6 of the Act can be made only "after the date of publication of the notification u/s 4, Sub-section (1).". In view of this amendment notification u/s 6 of the Act has to be made after the notification u/s 4(1) of the Act is published. The expression "after the date of publication of the notification" as added to Sub-section (4) of Section 17 of the Act contemplates the issue of notification u/s 6 of the Act, only after the publication of the notification u/s 4(1) of the Act. Prior to the amendment the declaration u/s 6 of the Act could be made simultaneously with the publication of the notification u/s 4(1) of the Act, but now after the amendment a declaration can be made only after the date of publication of the notification u/s 4 of the Act. This means that there must be difference of dates between the date of publication of the notifications under Sections 4 and 6 of the Act, Now after the amendment both the notification cannot be published on the same date. The publications of the notification under Sections 4 and 6 of the Act on the same date would be contrary to Sub-section (4) of Section 17 of the Act as amended by Act No. 68 of 1984, which would render the notification u/s 6 of the Act invalid. In the instant case, the notification u/s 6 of the Act containing declaration that the land in dispute was needed for a public purpose was issued on 6-5-1985 and published simultaneously along with notification u/s 4(1) of the Act on the same date, namely May 22, 1985. This is in clear violation of Section 17(4) of the Act. In this view the impugned notification issued u/s 6 is rendered illegal and as such the respondents are not entitled to take possession of the petitioners'' land.

We accordingly allow the petitions and quash the notification dt. 6-5-1985 issued u/s 6 of the Act. The petitioners are entitled to their costs.