S.H. RANGAPPA A v.

STATE OF KARNATAKA AND ANR.

OCTOBER 3, 2001

[B.N. KIRPAL, N. $ANTOSH HEGDE AND P. VENKATARAMA B

REDDI, JJ.]

Land Acquisition :

Land Acquisition Act, 1894: Sections 4( 1) and 6( 1) proviso-Acquisition C of land-For public purpose-Declaration-Issuance of-Limitation-Period of-Held: Declaration under S. 6( I) has to be made within one year of the publication of S. 4 notfication-However, no time limit is prescribed under S~ 6(2) within which s .. 6(1) declaration is to be published.

Words and Phrases : D

"Publish" and "from the date of publication of the not(fication"- Meaning of-Jn the context of S. 6( 1) proviso (ii) of the land Acquisition Act, 1894.

The respondent-State issued a notification under Section 4(1) of the Land Acquisition Act, 1894 on 28-11-1987 wherein it was stated that the lands indicated in the Schedule thereto were intended to be acquired for the public purpose of construction of houses by the Housing Board. The notification was published in the newspaper on 23.2.1988. A declaration under Section 6(1) of the Act was made on 22.2.1989.

The appellant filed a writ petition in the High Court challenging the validity of the notification under Section 6 of the Act on the ground that this notification. was barred by Ume. The High Curt dismissed the writ petition. Hence this appeal.

On behalf of the appellant it was contended that the declaration~ which was issued under Section 6 of the Act, had to be published within one year of the publication of Section 4 notification.

The following question arose before this Court :

A Whether the notification under Section 6(2) of the Land Acquisition

. Act; 1894 should be published within the period prescribed .by the proviso to Section 6(1) of the said Act?

Dismissing the appeals, the Court

HELD : 1. The words "publish" and "from the date of publication of the notification" occurring in proviso (ii) to Section 6(1) of the Land Acquisition Act, 1894 refer to the publication of the Section 4 notification and have no reference to the publication: of any notification under Section

6. Under Section 6(1); it is only a declaration, which is required to be. made, the time limit being within one year of the publication of Section 4 notification. [550-B]

2. Section 6(2) of the Act does not prescribe any time limit within which the declaration made under Section 6(1) is to be published. The purpose of Section 6 notification being to give a final declaration with regard to the need of the land for public purpose, the interest of the hmd owners was sufficiently safeguarded with the requirement of the making of the declaration under Se"ction 6(1) within a prescribed period. It is difficult to read into Section 6(2) the provisions of the proviso to Section 6(1), which relate t~ the time Umit for issuance of the notification under Section 6(1).

[550-D-E; G-H] .

'Khadim Hussain v. State of U.P., (1976] 1 SCC 843, followed.

' . . ' - Bachhittar Singh v. State of Punjab, (1962] Supp. 3 , SCR 713, Krishi Utpadan Ma.ndi Samiti v. Makrand Singh, (1995] 2 SCC 497 and Eugenia Misquita v. State of Gqa, (1997]8 SCC 47, held inapplicabfo.

Senjeeva Nagar Medical and Health Employees Co-operative Housing Society v. Mohd. Abdu[Bawanab, (1996] 3 SCC 600, held obiter.

CIVIL APPELLATE JURISDICTION: Civil Appeal No. 7077 of2001.

From the Judgment and Order dated 17 .9.97 of the Karnataka High Court in W.A. No. 8730 of 1996.

WITH

Civil Appeal No. 7078 of 2001. ·

H G.L. Sanghi, R.S. Hegde, Sorniran Sharma, Prasha, nt Jain; P.P. Singh,

Shantha Kumar Mahale, R.C. Kohli, P.V. Mahale, S.K. Kulkarni, M. Girish A Kumar, Ms. Sangeeta Kumar, Satya Mitra, Sanjay R. Hegde, Ms. Kiran Suri, N. Ganpathy and P.R. Ramasesh for the appearing parties.

The Judgment of the Court was delivered by

KIRPAL, J.

C.A. No. 7077 .of 2001 @ SLP (C) No. 22637 of 1997.

Leave granted.

Whether the notification under Section 6(2) of the Land Acquisition Act, C 1894 (hereimfter referred to as "the Act") should be published within the period prescribed by the proviso to Section 6(1) of the said Act, is the only question which arises for consideration in this case.

The notification dated 29th November, 1987 was issued and published in the Official Gazette on 28thJanuary, 1988. The same was published in the . newspaper on 23rd February, 1988. This notification was issued under Section 4(1) of the Act wherein it was stated that the lands indicated in the Schedule thereto were intended to be acquired for the public purpose of construction of houses by the Karnataka Housing Board. Persons interested were informed that they could file objections to the proposed acquisition. This notification was published in the newspaper on.~3rd February, 1988 whereafter objections were filed under Section 5A of the Act. On 22nd February, 1989 a declaration was made signed by the competent authority µnder Section 6(1) of the Act. It was . stated therein that after verification of the Report of the Housing Commissioner and taking into consideration objections under Section 5A, it was declared that the lands specified in the Schedule thereto were acquired for the public purpose for constiuction of different categories of houses by Karnataka. Housing Board.

This declaration which was dated 22nd February, 1989 was published in the Official Gazette on 9th March, 1989.

The appellant herein challenged the validity of the notification under Section 6 primarily on the ground that this notification was barred by time. It was contended by the learned counsel that the notification under Section 6(1) had to be issued within one year of the publicatio~ of St".ction 4 notification and this not having been done the said notification w1.1s liabl.e to be quashed.

The Single Judge of the High Court did not accept this argument. It was observed that the declaration was made within one year under Section 6( 1) on

22nd february, 1989. The said Section 6 did not provide for any period of limitation within which the declaration had to be published and, therefore, - once the declaration was made within the prescribed period, the notification was valid. The writ appeal met with no success. Hence, this appeal by special leave.

It is contended by the learned senior counsel for the appellant that on a correct interpretation of Section 6, the declaration which was issued has to be published within one year of the publication of Section 4 notification.

Section 6 reads as follows:

"6. Declaration that land 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 under Section 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 sign11:ture of aSecretary to such Government or of some officer duly authorized to certify its orders, and different declarations may be made from time to time in respect of different parcels of any land covered by the same notification under Section 4, sub-section (1), irrespective of whether one report or different reports has or have been made (wherever required) under Section 5-A, subsection (2)] :_

[Provided that no declaration in respect of any particular land covered by a notification under Section 4; sub-section (1) -

(i)published 'after the commencement of the Land Acquisition Act (Amendment and Validation) Ordinance, 1967 (1of1967), but before the commencement of the Land Acquisition (Amendment) Act, 1984, shall be made after the expiry of three years from the. date of the publication of the notification; or

(ii) published after the commencement of the Land Acquisition (Amendment) Act, 1984, shall be made after the expiry of one year from the 'date of the publication of the ntification;]

. Provided further that no such declaration shall be made unless the compensation to be awarded for such property is to be paid by a

...

Company, or wholly or partly out of public revenues or some fund controlled or managed by a local athority.

[Explanation : l - In computing any of the periods referred to in the first proviso, the period during which any action or proceeding to be taken in pursuance of the notification issued under Section 4, subsection (l), is stayed by an order of a Court shall be excluded.

Explanation : 2 - Where the compensation to be awarded for such property is. to be paid out of the funds of a corporation owned or controlled by the State, such compensation shall be deemed to be compensation paid out of public revenues.]

(2) [Every declaration] shall be published in the Official Gazette, [and in two daily newspapers circulating in the locality in which the land is situate 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 said locality (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), and such declaration shall state] the district or other territorial division in which the land is situate, the purpose for which . it is needed, its approximate area, and where a plan shall have been made of the land, the place were such plan may be inspected.

(3) The said declaration shall be conclusive evidence that the land is needed for a public purpose or for a Company, as the case may be; and,

after making such declaration, the [appropriate Government] may p acquire the land in manner hereinafter appearing."

Declaration under Section 6 is preceded by issuance of a notification under Section 4 which indicates the intention of the Government to inter alia acquire land for a public purpose. Pursuant to the issuance of the same, objections can be filed and after hearing the same, Section 6(1) enables the appropriate authority if it is satisfied, after considering the report made under Section 5A of the Act, that if any particular land Is needed for a public purpose, then a declaration is to be made under the signature of an appropriate officer.

Where notification under Section 4 is published after the commencement of the Land Acquisition Amendment Act, 1984, as in the present case, proviso (ii)

A requires that such a declaration shall not be made after the expiry of one year from the date of the publication of Section 4 notification.

We wish to clarify that the words "publish" and "from the date of publication of the notification'' occuring in proviso (ii) to Section 6(1) refer to the publication of the Section 4 notification and have no reference to the publication of any notification under Section 6. Under Section 6(1), it is only a declaration which is required to be made, the time limit being within one year of the publication of the Section 4 notification. The. main purpose for the issuance of a declaration under Section 6 is provided by sub-section (3), namely, that ihe dedaration is conclusive evidence that the land is needed.inter alia for a public purpose and after the making of the declaration the appropriate, Government may acquire the land in the manner provided by the Act. -Subsection (2) requires the declaration to be published in the Official Gazette and in two daily newspapers circulating in the locality in which the land is situate and in addition thereto the Collector is also required to cause public notice of the substance of the declaration to be given in the convenient places in the said locality.

0 It is pertinent to note that sub-section (2) .of Section 6 does not prescribe any time limit within which the declaration made under Section 6(1) is to be published. It is well known that after an order or declaration is made there can be a time gap between the making of the order or a declaration and its publication in the Official Gazette. Whereas the time limit for the making of an order is provided under Section 6(1), the legislature advisedly did not provide for any time limit in respect of the steps required to be taken under subsection (2) of Section 6. If the contention of Mr. GL. Sanghi, the learried senior counsel for the appellant is correct, the effect would be that not only the declaration would have to. be published within the. time prescribed under the proviso to Section 6(1) but all other steps, like publication in the daily newspaper and the Collector causing public notice of the qeclaration to be given at a convenient places in the locality, must also be completed within a period of one year of Section 4 notification. This could certainly not be a consequence contemplated by the legislature. As already observed, the purpose of Secticm 6 notification being to give a final declaration with regard to the need of the land for public purpose, the interest of the _land owners was sufficiently safeguarded with th~ requirement of the making of the declaration under Section 6(1) within a prrescribed period. It is difficult for us to read into subsection (2) the provisions of the proviso to Section 6(1) which relate to the time limit for issuance of the notification under Section 6(1).

This view which we have expressed hereinabove finds support from a decision of a Bench of four Judges of this Court in the case of Khadim Hussain

v. State of U.P. & Ors., [1976] 1 SCC 843. The question which arose in that case related to the time within which the declaration made under Section 6(1) bad to be published in the Gazette. Repelling the contention that there was any time prescribed for publication of the declaration this Court held. as follows :

"2S:"It is clear from the provisions set out above that the object of the notification under Section. 6 is to ensure that the Government is duly satisfied, after an enquiry at which parties concerned are heard, that the land under consideration is really needed for a public purpose and that

the declaration is to operate as conclusive evidence to show' that this C is so. The conclusiveness of this declaration cannot be questioned anywhere if the procedure dealing with its making has been observed.

The notification which takes place under Section 6(2), set out above, follows and serves only as evidence of the declaration. That the declaration is shown by the fact that it has to be signed by a Secretary or other officer duly authorised. The declaration is in the f<?rm of an . D order. Te notification is its publication and proof of its existence. It has been shown, in the case before us, that the deemed notification under Section 6 took place about three and a half months after the expiry of two years from the commencement of the ordinance of 1967.

B.ut, it is not argued on behalf of the appellant that the declaration E under Section 6 was similarly delayed. Presumably, it wa:s within time.

26. A look at the amendment introduced by the Section 4(2) of the Land Acquisitiop (Amendment; and Validation) Act, 1967, shows that it is declaration which has to take place within two years of the expiry .of the commencement of the ordinance which came into force on F January 20, 1967. In fact, Section 4(2) of the Amendment Act of 1967, set out above, itself makes a distinction between a "deeJaration" under Section 6 and its "notification" under Section 4 of the principal Act.

It does not say that no notifiction under Section 6 of the principal Act can take place beyond the time fixed. The prohibition is confined to. . G declarations made beyond the specified period. If the case of the appellant could be that no declaration was made within the prescribed time, it was his duty to prove it. He has not discharged that onus.

27. As indicated by the Division Bench of the Allahabad High Court, the amendment of 1967, was the result ofa decision of this Court in H

the State of M.P. v. Vishnu Prasad Sharma holding successive, notifications, under Section 6, with excessive intervening delay between ' a notification under Section 4(2) and a declaration under Section 6, keeping the owner or other person entitled to compensation in suspense between a declaration and its notification is shown to exist, it may raise a suspiCion about the existence of the declaration itself or about the bonafides of acquisition proceedfogs. This h9wever, is not the position in the case before us. Neither the existence nor the bonafides of the declaration have been questioned. It has not been either asserted or shown, as already mentioned, that no declaration was made within the period of time fixed for it. We, therefore, reject the last objection also."

While referring to the decisions of tl1is Court in Bachhittar Singh v. The State of Punjab, [1962] Suppl. 3 SCR 713 as well as.Krishi Utpadan Mandi Samiti & Anr. v. Makrand Singh & Ors., [1995] 2 SCC 497 and Eugenia Misquita & Ors. v. State of Goa & Ors., [1997] 8 SCC 47, Mr. Sanghi, learned senior counsel contended that the observations of this Court ill Khadim Hussain's case require reconsideration. With respect, we are unable to agree with this for more than one reason. Firstly, t.he decision in Khadim Hussain s case was rendered by four Judges and the said decision is binding on us, apart from the fact that on the interpretation of the provisions of Section 6 we are in agreement with the views expressed by the Bench in that case. Secondly, as far as Bachhittar Singh l' case is concerned that related to notings on the file made by a Minister and the question which arose was whether that was on order which could have been regarded to have been passed. By referring to the provisions of Article 166 of the Constitution of Indi~, this Court held that the said decision would not be regarded as an order of the Government. In Krishi F Utpadan s case and Eugenia's case there was no reference made to the binding decision of this Court in Khadim Hussain s case. Everi otherwise, in both these cases, declaration under Section 6 had been published within one year of the notification under Section 4 and the question in the form in which it has arisen for consideration in the instant case did not arise there.

G Mr. Sanghi also drew our attention to the observations of this Court in . Senjeeva Nagar Medical and Health Employees Co-operative Housing Society

v. Mohd. Abdul Bawahab, [1996] 3 SCC 600. While referring to.the various provisions of the Act at page 606, it was observed that "the declaration should be within one year." Mr. Sangtii contends that this is a decison of three Judges H which we should foliow. We are unable to accept thi.s for the reason that what ·

arose for consideration before the Court in Senjeeva Nagar's case was the provision of Section 4 as amended by the State of A.P. which fixed time limit of 40 days for giving public notice on the substance of a notification under Section 4(1). The Court was called upon in that case to consider whether a declaration under Section 6(1) was required to be published in a Gazette within one year of the publication of Section 4 Notification. Therefore, the aforesaid observation is only an obiter and contrary to the decision of this Court of a larger Bench in Khadim Hussain~· case which decision has neither been referred to in the Senjeeva Nagar's case or in the Krishi Utpadhan Mandi's case and in Eugenia's case.

Following the decision of this Court in Khadim Hussain's case with C which we agree, this appeal is dismissed but with no order as to costs.

C.A. No. 7078/2001 @ SLP (C) No. 3455 of 1999.

Leave granted.

For the reasons stated hereinabove, this appeal is also dismissed.

v.s.s.

Appeals dismissed.