Mohanarangam vs The Executive Engineer, Madras Metropolitan Water and Sewerage Board and Others

E. Padmanabhan, J.—The petitioner prays for the issue of a writ of certiorari calling for the records relating to the land acquisition

proceedings in G.O.Ms.No. 884, Municipal Administration and Water Supply Department, dated 10.9.1987 with reference to item Nos. 5, 6, 9

and 14 in issuing a Notification u/s 4(1) of the Land Acquisition Act and the declaration u/s 6 of the Act issued in G.O.Ms.No. 487, Municipal

Administration and Water Supply Department, dated 23.5.1990 and quash the same.

Heard Mrs. C.R. Rukmani, learned Counsel for the petitioner, Mr. A. Arumugham, learned Counsel appearing for the first respondent and Mr.

D. Munusamy, learned Special Government Pleader appearing for respondent Nos. 2 to 4.

A Notification u/s 4(1) of the Land Acquisition Act was published in G.O.Ms, No. 884, Municipal Administration and Water Supply

Department, dated 10.9.1987. The said Section 4(1) Notification was published in the Government Gazette dated 21.10.1987. Section 4(1)

Notification was published in the Tamil Daily Dinakaran on 23.5.1989 and in Murasoli on 24.5.1989. Even according to the counter, the

substance of Section 4(1) Notification was published in the locality on 31.5.1989. There is a delay of 19 months between the Gazette publication

and the publication in Tamil daily as well as in the locality. These dates are admitted and the same are admitted in the counter affidavit as well. The

substantial contention is advanced on the basis of the said admitted facts.

An enquiry notice u/s 5-A of the Act was issued on 28.6.1989 which was served on the petitioner on 29.6.1989. Om 14.7.1989 objection was

submitted by the petitioner. The said objections were forwarded to the requisitioning body on 21.9.1989. But the remarks of the requisitioning

body was communicated along with the proceedings overruling the objections and submitting proposal to the Government to issue a declaration u/s

Factually, the remarks of the requisitioning body had been served on the petitioner only on 29.12.1989 long after enquiry u/s 5-A In other

words, it is contended that there is a violation of Rule 3(b) which provides mandatorily that the remarks of the requisitioning body should be

furnished to the land owner who has raised objections before the date fixed for enquiry u/s 5-A and there should be an enquiry after

communication of the remarks. This is being pointed out as a violation. A declaration u/s 6 was issued on 23.5.1990 and the same was gazetted on

25.5.1990.

Section 6 declaration has been published in the Tamil daily Murasoli on 25.5.1990 and in Malaimurasu on 25.5.1990, besides it is published in

the locality on 25.5.1990. Section 9(1) notice dated 23.9.1991 was served on the petitioner on 1.10.1991. Though award enquiry for passing of

the award had been conducted and award has been passed on 26.5.1992, it is claimed by the respondents that the award had been served by

affixture. It is admitted that possession of the land had not been taken so far. In the meanwhile, the petitioner filed the above writ petition the 28th

of April, 1992 i.e., before the passing of the Award and secured interim orders of stay.

There is no dispute that the land has been acquired for a public purpose and the petitioner is owner of the land whose name finds a place in the

revenue records. The learned Counsel for the petitioner advanced the following contentions:

(a) Section 4(1) Notification and Section 6 declaration are liable to be quashed as the declaration has been issued beyond the period of one year

from the date of publication of Section 4(1) Notification.

(b) Rule 3(b) of the Land Acquisition Rules and Section 5-A has been violated in that the remarks of the requisitioning body had not been

communicated before the enquiry, but communicated along with 5-A proceedings and overruling the objections, which is violative of the

mandatory provisions.

Both the contentions are well founded in this case. Section 4(1) Notification was published in the Gazette on 27.10.1987. The Section 4(1)

Notification was published in Dinakaran on 23.5.1989 and Murasoli on 24.5.1989. Substance of Section 4(1) Notification was published in the

locality on 31.5.1989 after a lapse of nineteen months. Section 6 declaration was made only on 23.5.1990 and published in the Gazette on

25.5.1990.

It is contended by Mrs. C.R. Rukmam, learned Counsel for the petitioner that publication of Section 6 Declaration after a lapse of one year is

illegal as it is barred by Proviso to Section 6 of the Land Acquisition Act, Proviso to Section 6 provides that no declaration in respect of any

particular land covered by a Notification u/s 4(1) shall be published after the commencement of the Land Acquisition Act, 1894, after the expiry of

one year from the date of publication of the Notification.

In this case as already pointed the Section 6 declaration has been issued on 23.5.1990 and published on 25.5.1990. Reckoned from

21.10.1987, the date of publication of Section 4(1) Notification, it is definitely barred by limitation. What is sought to be contended by the

Government Pleader being last of the Section 4(1) Publication has been effected on 31.5.1989 and therefore reckoned from that date, Section 6

Declaration is well within time. This contention cannot be sustained at all. After having made a local publication after a lapse of 19 months.

It is rather extraordinary for the respondents to contend that the said date has to be taken or reckoned for the purposes of calculating the

limitation prescribed in the Proviso to Section 6 of the Act. In the Tamil dailies also publication has been made only on 23/24.3.1989. Here again

there is a delay of fifteen months or thereabout. If such a contention advanced by the counsel for the petitioner is to be sustained, then the very

object with which Section 6 Proviso has been introduced will be defeated which is not the intendment of the statutory provision.

A Division Bench of this Court had occasion to consider an identical situation in The State of Tamil Nadu and Others Vs. Rajendran and

Others, and held if two events are unlinked from each other by a gap of time so large as may lead to the prima facie conclusion of lack of bona

fides in the proceedings for acquisition, then it may become necessary to probe further to discover if there is any cause for the delay and if the

delay has caused prejudice to anyone.

In that context, the Division Bench held thus:

Thus, the following propositions emerge from the decision of the Supreme Court: (i) it is mandatory to comply with the provisions of Section 4(1):

(ii) The publication of the Notification u/s 4(1) in the Official Gazette and public notice of the same in the locality need not be immediate or.

simultaneous and can be contemporaneous as it involves a gap of time; therefore, both must necessarily be separate by a gap of time, (iii) The time

gap between the publication of the notification in the Official Gazette and public notice of the substance of the notification in the locality does not by

itself render the acquisition void. (iv) If the two events are unlinked from each other by a gap of time so large as may lead to the prima facie

conclusion of lack of bona fides in the proceedings for acquisition then it may become necessary to probe further to discover if there is any cause

for the delay and if the delay has caused prejudice to anyone.

In the instant case, there is a time gap as already pointed out, between the Gazette Publication of the Notification and the public notice of the

substance of the notification in the locality. There is an Explanation offered for the delay which, as already referred to, was accepted in

Vijayaragahavan''s case by a Division Bench of this Court, we have also found that this Explanation upto 8.5.1985, and the Explanation from

8.5.1985 till 13.11.1985 is not specific, it is only general. If the gap of time is long as laid down by the Supreme Court in Deepak Pahwas case, by

itself it does not lead to invalidity of the notification and the Court is required to find out whether such a delay is due to lack of bona fides in the

proceedings and has caused prejudice to anyone. In this regard, it may be pointed out that the petitioners have not pleaded lack of bona fides on

the part of the acquiring authority and even before us the purpose for which the acquisition is made has not been questioned.

In the present case as seen from the counter affidavit, no Explanation has been given or attempted by the respondents, except saying that the

requisitioning body had changed its proposal partly. This cannot be an explanation, much less, a valid explanation for the delay in the locality of

publication of Section 4(1) Notification.

As already stated after a gap of 19 months, which is a very wide gap, the substance had been published in the locality. So also in the two Tamil

dailies. There is definitely a failure to publish the substance of Section 4(1) Notification in the locality within a reasonable time, which failure as

rightly contended by the learned Counsel for the petitioner is fatal to the acquisition.

In Nandakumar v. State of Tamil Nadu 1986 W.L.R. 164 , a Division Bench of this Court held thus:

In this connection we may also notice a decision of the Supreme Court on the subject reported in Deepak Pahwa and Others Vs. Lt.

Governor of Delhi and Others, . In that case, the Supreme Court held as follows:

It may be noticed at once that Section 4(1) 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. Publication in the Official Gazette and public

notice in the locality are two vital steps required to be taken u/s 4(1) before proceeding to take the next step of entering upon the land u/s 4(2).

The time factor is not a vital element of Section 4(1) and there is no warrant for reading the words ''simultaneously'' or immediately thereafter into

Section 4(1). Publication in the Official Gazette and public notice in the locality area the essential elements of Section 4(1) and not the

simultaneously or immediacy of the publication and the public notice. But since the steps contemplated by Section 4(1) cannot be undertaken

unless publication is made and public notice given as contemplated by Section 4(1), it is implicit that the publication and the public notice must be

contemporaneous though not simultaneous or immediately after one another. Naturally contemporaneity may involve a gap of time and by the very

nature of the 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 of 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 large as may lead one to the prima facie

conclusion of lack of bona fides in the proceedings for acquisition. If the notification and the public notice are separated by such a large gap of

time, it may become necessary to probe further to discover if there is any cause for the delay and if the delay has accused prejudice to any one.

We may consider here an argument which is usually advanced against any time gap between the publication in the Official Gazette and the public

notice in the locality. Section 5-A provides that any person interested in any land which has been notified u/s 4(1) may object to the acquisition of

the land or of any land in the locality within 30 days after the issue of the notification. It is, therefore, suggested that if the publication of the

notification in the gazette is not immediately followed by a public notice in the locality, it may lead to a denial to the person interested of an

opportunity to object to the acquisition. We think, that this is too narrow an interpretation of Section 5-A. Notice to interested persons of a

proposed acquisition of land is given by publishing a notification to the effect that land in any locality is needed or is likely to be needed for any

public purpose in two ways-first, by causing publication of the substance of the notification to be given at convenient places in the locality. There is

no reason to confine the period of 30 days prescribed by Section 5-A to one mode. The period of 30 days may be reckoned from either the date

of publication in the Gazette or the date of public notice of the substance of the notification in the locality, whichever is later. In our view, that is the

only reasonable and practical way of construing Section 5-A so as to advance the object of the provision, which is to provide a reasonable

opportunity to interested persons to oppose the acquisition. We particularly notice that Section 5-A does not refer either to the date of publication

in the Official Gazette or the date of public notice of the substance of the notification in the locality. It speaks of the issue of the notification. This we

consider is significant and, in the context, the words the issue of the notification can only signify the completion of the prescribed process-rather,

the twin process of notifying the interested public of the proposed acquisition in the manner provided for by Section 4(1), that is by publication in

the Official Gazette and giving public notice in the locality.

It may be seen from this that though the publication need not be simultaneous, the public notice must be contemporaneous. We have already

noticed that Section 4(1) notification was published in the gazette on 7th June, 1978 and the publication in the locality was made only on 19th

December, 1978 more than six months later. No counter affidavit has been filed to show the continuity of action as required in the judgment of the

Supreme Court. The learned Additional Government Pleader vaguely suggested that there was an errata published in respect of the same some

time on 1st November, 1978 and that the reason for the delay. We have perused the land acquisition file produced by the learned Additional

Government Pleader. The errata related to one or other of the boundaries of 4 or 5 survey numbers and not any deletion or omission of any

property. Nothing prevented the Government from publishing the notification in the locality immediately after publication in the Gazette. Even after

the alleged errata published on 1st November, 1978, there was a long gap of more than one month and 15 days in the issue of public notice. We

are satisfied that the continuity of action was broken by a deep gap. We are not satisfied that the delay in the publication in the locality was caused

by any bona fide reasons.

In fact in Khadi Gramodyog Bhavan Vs. Hasheeda Begum and Others, a later Division Bench of this Court, to which Division Bench, I am a

party, followed the said view of the earlier Division Bench.

Therefore, for purposes of Section 6(1) Proviso, on the facts of the case, Section 4(1) Notification has to be taken as 21.10.1987, namely the

date of Gazette publication and reckoned from 21.10.1987, the last date for publication of Section 6 Declaration falls on 20.10.1988. Hence, the

Declaration issued u/s 6 on 23.5.1990 and published on 25.5.1990 is barred in terms of the Proviso to Section 6 of the Land Acquisition Act.

As regards violation of Rule 3(b) even this contention also deserves to be sustained as admittedly the remarks of the requisitioning body had

not been communicated to the petitioner before holding an enquiry u/s 5-A nor an enquiry was conducted after communicating the remarks. This is

in violation of Rule 3(b) of the Rules and the point is covered by the Division Bench Judge of this Court in N.D. Ramanujam v. State of Tamil

Nadu 1994 W.L.R. 326. This contention though not raised in the affidavit filed in support of the writ petition, identical grounds were raised in

connected Writ Petition Nos. 9252 of 1993 and 9991 of 1993 etc., and in those counter affidavits the fact that remarks of the requisitioning body

had not been communicated to the land owners before holding 5-A enquiry, and that it was communicated along with 5-A enquiry proceedings at

the conclusion has been admitted. In this respect the very 5-A proceedings dated 24.12.1989 communicated to the petitioner herein would show

that the remarks of the requisitioning body had been communicated only with the said 5-A proceedings and not at any time before concluding the

5-A enquiry. As these two grounds are sufficient to quash the acquisition it is not necessary to consider, any other contentions advanced by the

counsel for the petitioner.

In the result, the writ petition is allowed. The impugned acquisition in so far as the petitioner''s land is concerned, is quashed. It is made clear

that it is well open to the respondents to proceed afresh to acquire, if the lands are required. The parties shall bear their respective costs.

Consequently, connected W.M.P. is closed.