TMI Blog1989 (1) TMI 360X X X X Extracts X X X X X X X X Extracts X X X X ..... tember, 1974, Lucknow had been declared to be a development area by a notification. On or about 24th of September, 1984 Land Acquisition (Amendment) Act, 1984 was made effective subsequent to the 24th of September, 1984. On the 8th of December, 1984 a Notification under section 4(1) and a declaration under Section 6 of the Land Acquisition Act, 1894 (hereinafter referred to as 'the Act') in respect of Ujariyaon Housing Scheme (Gomti Nagar) Phase-II was published. On the 28th December, 1984 Notification under Section 4(1) and declaration under Section 6 of the Act in respect of L.D.A. Office/Nagar Maha Palika Office and other offices on B.N. Road was published. On the 2nd January, 1985 Notification under Section 4(1) and declaration under Section 6 of the Act in respect of Dalibagh Housing Scheme was published. On the 4th of February, 1985 Notification under Section 4(1) and declaration under Sec- tion 6 of the Act in respect of Extension of Kursi Road upto Mahanagar through Vishnupun was published. On 21st February, 1985 Notification under Section 4(1) and declaration under Section 6 of the Act in respect of Ujariyaon Housing Scheme (Somti Nagar), Phase-III was published. I ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... r Section 6 of the Act can only be issued after the Notification under Section 4 was published. The High Court found substance in the said submission. According to the High Court, prior to the amendment of the Act by the Amend- ing Act No. 58 of 1984 it was permissible for the Government to issue Notification under Section 4 of the Act and to make declaration as contemplated under Section 6 of the Act simultaneously and it was further permissible to publish both the notification simultaneously as held by this Court in Smt Sornawanti Ors. v. State of Punjab, [1963] 2 SCR 775. The High Court noted that normally after the issue of the Notification under Section 4 of the Act objections are invited as contemplated by Section 5-A 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 make it possible even prior to the making of the award, it has the power to dispense with the provisio ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... mended by Act 68 of 1984 and would render the Notification under Section 6 of the Act invalid. The High Court found that the Notification under Section 6 of the Act containing declaration that the land in dispute was needed for a public purpose was issued on 6th of May, 1985 and published simultaneously along with the Notification under Section 4(1) of the Act on the same date, namely, May 22, 1985. This, according to the High Court, was in clear violation of Section 17(4) of the Act. In this view, the impugned Notification under Section 6 was rendered illegal and as such the appellants were not entitled to take possession of the respondents' land. The High Court accordingly quashed the notification dated 6th May, 1985 issued under Section 6 of the Act. The short question with which these appeals are con-cerned is, whether the declaration under Section 6 of the Act could be issued simultaneously along with the notification under Section 4 of the Act in view of the amendment made to Section 17(4) of the Act. To decide the question it is necessary to appreciate the scheme of the Act after amendment. Section 4 of the Act envisages publication of preliminary notification where it a ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... been mentioned in the grounds of appeal herein. It was submitted on behalf of the appellant that the substitution of the words after the publication of the notification by the words after the date of the notification in sub-section (4) of Section 17 of the Act has not made any change in law and as such simul- taneous publication on one and the same date of the Notification under Section 4 and declaration under section 6 of the Act in case of urgency where Section 5-A had been made inapplicable prior to the amendment by Amending Act No. 68 of 1984 have been upheld in a number of decisions of this Court and this position, it was submitted, continues to be valid even after the amendment by Amendment Act No. 68 of 1984. In order to appreciate the contentions urged in sup- port of this submission, it is necessary to note the significant changes that have been made by the Amending Act No. 68 of 1984 in Sections 4 and 6 as well as Section 17 of the Act. The relevant sub-sections of sections prior and subsequent to the amendment are as follows: Unamended Section 4(1) Whenever it appears to the appropriate government that land in any locality is needed or is likely to be needed fo ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... he notification under Section 4(1). Amended Section 17(4) In the case of any land to which in the opin- ion of the appropriate Government the provi- sions of sub-section (1) or sub-section (2) are applicable, the appropriate Government may direct that the provisions of Section 5-A shall not apply and, if it does so direct, a declaration may be made under Section 6 in respect of the land at any time (after the date of the publication of the notification under section 4, sub-section (1). It was contended that the amendment of Section 17(4) by he words after the date of the publication of the notification was necessitated because of the change of the expression in sub-section 1 of the Section (4) which for the first time gave a definition of the date of the publication of the notification. Similarly, in Section 6(2), the last date of the publication as enjoined in Section 6 and as set out hereinbefore had been defined as the date of publication. For this purpose, it was necessary to introduce the expression after the date of the publication of the notification under sub-section (4) of Section 17 of the Act. It was submitted that the proceedings for acquisition ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... of the Act dated August 19, 1961 was published to the effect that the Governor of Punjab was satisfied that the land was required by the Government at public expenses for public purpose. The notification provided for immediate taking of the possession of the land under Section 17(2)(c) of the Act. A Bench of, five Judges of this Court inter alia held that simultaneous publication of the notification under Section 4 and declaration under Section 6 of the Act in a situation where section 5-A was out of the way was not bad. This view was reiterated by this Court in Babu Singh Ors. v. Union of India Ors., AIR 1979 SC 1713. A Bench of two Judges in that decision held that there is nothing in the provisions of the Act which would come in the way of the Government issuing a notification under Section 6 immediate- ly after notification under Section 4 if on applying urgency clause, enquiry under Section 5-A is dispensed with and both could be issued on the same day. The question is, has the position changed with the changes noted in law hereinbefore. Mr. S.N. Kacker, learned counsel who argued this case before us had submitted that the use of the words the date of the publication ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 1984 every declaration shall be published in the official gazette and 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 locality in which the land is situated, 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. Under both Sections 6(2) and 4(1) the date of publication having been specified, amend- ment had to be made under subsection (4) of Section 17 of the Act and it was laid down that in case of urgency the appropriate Government may direct that the provisions of Section 5-A of the Act shall not apply and it so directs that the declaration be made under Section 6 in respect of the land at any time after the date of the publication of the notification under sub-sections (1) of Section 4 and the addition of the words the date of have not brought about any change in law at all. It was a verbal change necessitated by the amendment in Section 4 and Section 6 as noted ab ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... mber. The notice of the substance of the second notification was not published in the locality. As the earlier notification had no relevance to the plot of the respondent, there was admittedly no notice of the substance of the notifications in the locality. Questions for determination were: 1. Whether the requirement under the second part of Section 4(1) regarding giving public notice of the substance of the notification in the locality is mandatory and its non-compliance is fatal to the acquisition proceedings: 2. Whether the acquisition proceeding was vitiated by legal mala fides; 3. Whether the notification under Section 4 was invalid as it had been issued without first complying with Rule 4 of the Land Acquisition (Companies) Rules, 1963? This Court answered the first two questions in the affirmative and left the third question open. This Court held that the publication of the notice in the locality as required in the second part of Section 4(1) of the Act was mandatory and unless that notice was given in accordance with the provisions contained therein, the entire acquisition proceedings would be vitiated. The Court further held that the assumption that the sole pu ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... notification introduced in Section 17(4) can be explained away as making no change from the provisions of law by reading it along with the amendment made in Section 4 whereby in different situation in section 4, the last date of publication of the notice has been determined as the date of the publication of the notification and similarly in Section 6 a date of the publication of the notice has been provided for. But the words after the date of the publication of the notification in sub-section (4) of Section 17 read simpliciter clearly indicate that declaration under Section 6 had to be made after the publication of the notification meaning thereby subsequent to the date of the publication of the notification. 1t appears to us that there is nothing in the scheme of the Act which mil tates against such a construction. At times where emergency provisions are invoked emergent action may be taken but in such a situation in view of the state of law that was before it, the legislature has made a conscious change which cannot be explained away merely because this is as a consequence of the changes in Sections 4 and 6 of the Act. Reliance was placed on behalf of the appellant on Lor ..... X X X X Extracts X X X X X X X X Extracts X X X X
|
