Case: State of Uttar Pradesh Vs.  Radhey Shyam Nigam and Ors.

2. Uttar Pradesh Urban Planning and Development Act was enacted by the U.P. legislature in 1973. On or about September 11, 1974, Lucknow had been declared to be a development area by a notification. On or about September 24, 1984 Land Acquisition (Amendment) Act, 1984 was made effective subsequent to September 24, 1984. On December 8, 1984 a notification under Section 4(1) and a declaration under Section 6 of the Land Acquisition Act, 1984 (hereinafter referred to as the Act) in respect of Ujariyaon Housing Scheme (Gomti Nagar) Phase II was published. On December 28, 1984 notification under Section 4(1) and declaration under Section 6 of the Act in respect of LDA Office/Nagar Mahapalika Office and other offices on B.N. Road was published. On January 2, 1985 notification under Section 4(1) and declaration under Section 6 of the Act in respect of extension of Kursi Road up to Mahanagar through Vishnupuri was published. On February 21, 1985 notification under Section 4(1) and declaration under Section 6 of the Act in respect of Ujariyaon Housing Scheme (Gomti Nagar), Phase III was published. In respect of several of these matters on reverse dates several writ petitions had been moved and orders were passed by the High Court staying taking over of possession of the diverse lands, if not already taken over, in case notifications under Section 4(1) and Section 6 of the Act have been passed simultaneously3. As mentioned hereinbefore, we are concerned in these appeals with the judgment and order of the High Court of Allahabad dated November 20, 1985 in Writ Petitions Nos. 8145 and 8146 of 1985. The Petitioners before the High Court and the respondents herein are owners of plots situated in village Sonera, Tehsil Kichha, District Nainital. Their land was being acquired under the provisions of the Act. A notification under the said Act was issued on May 6, 1985 declaring that the land in question including the respondents land was needed for 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 provision of Section 17(1-A) and Section 17(4) of the Act shall apply and the provisions of Section 5-A of the Act shall not apply. On the same day, that is to say, on May 6, 1985 another notification was issued by the State Government under Section 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. That notification also contained a direction as contemplated by Section 17(1) and (1-A) of the Act authorising to Collector to take possession of the land even before the declaration of the awarded under Section 11 of the Act. Both the aforesaid notifications were published on the same day, namely, May 22, 1985. Aggrieved thereby, the respondents filed two writ petitions challenging the validity of the said notifications4. It was urged on behalf of the respondents before the Division Bench of the High Court of Allahabad that in view of the amendments introduced by the Land Acquisition (Amendment) Act, 1984 (Act 68 of 1984) the declaration as contemplated under Section 6 of the Act could not have been made on the same day on which the notification under Section 4 of the Act was published, it submitted that now after the amendment, the notification under 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 Amending Act 68 of 1984 it was permissible for the government to issue notification under Section 4 of the Act and to made declaration as contemplated under Section 6 of the Act simultaneously and it was further permissible to publish both the notifications simultaneously as held by this Court in Smt. Somawanti v. State of Punjab ((1963) 2 SCR 775 : AIR 1963 SC 151 : (1963) 33 Com Cas 745). The High Court noted that normally after the issue of the notification under Section 4 of the Act objections are invited as contemplated by SectionA 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 that power to dispense with the provisions of SectionA of the Act. Section 17 of the Act confers special power on the government and the Collector in case of urgency for immediate taking of possession after the issue of the notification under Section 6 of the Act and without complying with the provisions of SectionA of the Act. Section 17(4) of the Act prior to this amendment conferred power on the government to direct that the provisions of SectionA shall not apply, if in its opinion the provisions of) and (2) of Section 17 were applicable. The High Court was of the view that on the issue of such a direction by the government, a declaration could be made as contemplated by Section 6 of the Act in respect of the land at any time after the publication of the notification under Section 4 of the Act. According to the High Court, prior to the amendment of Section 17(4) of the Amending Act 68 of 1984, a declaration as contemplated under Section 6 of the Act could be made at any time along with the publication of the notification under Section 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 under Section 4(1). In view of this amendment notification under Section 6 of the Act had to be made after the notification under Section 4(1) of the Act was published. The expression after the date of publication of the notification as added ton (4) of Section 17 of the Act contemplated the issue of notificationn 6 of the Act only after the publication of notification under Section 4(1) of the Act. The High Court was of the view that prior to the amendment, a declaration under Section 6 of the Act could be made simultaneously with the publication of the notification under Section 4 (1) of the Act. But after the amendment, a declaration can only be made after the date of publication of the notification under Section 4. The High Court came to the conclusion that there must be difference of dates between the date of the publication of the notification under Section 4 and Section 6. After the amendment, according to the High court, both the notification cannot published on the same date. The publication of the notification under Section 4 and 6 of the Act on the same date would be contrary to Section 17(4) of the Act as amended by the 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 May 6, 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 appellant were not entitled to take possession of the respondents land. The High Court accordingly quashed the notification dated May 6, 1985 issued under Section 6 of the Act

Court's reasoning:
We have examined the observations of this Court at page 13 of judgment upon which reliance has been placed on behalf of the respondent. We are, however, of the opinion that in view of the significant difference in the set of facts with which this Court was dealing with in that case, the observations therein are not relevant for our present purposeIn our opinion, in this case in view of the alteration of the language and meaning and the meaning of the language used and the sense will be in consonance with the interpretation that the change was intendedshort question with which these appeals are concerned 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 theTo 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 appears to the appropriate government that land in any locality is needed or is likely to be needed for any public purpose or for a company, it enjoins in such situation that a notification to that effect shall published in the official gazette and in certain other daily newspapers and the substance of the notification is to be given at convenient places in that locality. It is not necessary to dilate on the subsequent procedure as contemplated by Section 4 of the Act. Section 5 of the Act enjoins payment of damages on the acquisition. SectionA of the Act provides for hearing of objection which has been notified under Section 4 of the Act the procedure thereto. Thereafter comes declaration under Section 6 of the Act. The sections provide that after consideration of the report, if any, made under SectionA that a particular land is needed for a public purpose or for a company, a declaration in the manner enjoined in Section 6 of the Act shall be made. The provisions of procedure to be followed on declaration under Section 6 of the Act, are not directly relevant for the purpose of these appeals. Section 17 of the Act with which we are directly concerned here provides with cases of urgency where the government can dispense with some of the provisions of the Act especially regarding inviting objections and hearing of these