Bheru Lal Vs State of Rajasthan and Others

P.P. Naolekar, J.@mdashAs common questions of law and facts are raised in this petition and batch of petitions shown in the Schedule annexed herewith and forms part of this order, they are decided by this common order.

2. The facts no longer in dispute are that a notification dated 21.2.90 u/s 4 of the Land Acquisition Act, 1894 (for short ''the Act'' hereinafter) was published in the Rajasthan Gazette dated 4.6.92 for acquisition of land for Urban Improvement Trust (U.I.T.), Udaipur for the purpose of Udaipur - Bhuwana Extension Scheme. Preceding the Gazette notification, notification u/s 4 was published on 31.3.90 is Rajasthan Patrika, Udaipur and on 1.4.90 in another news paper. The notification u/s 4 was again published in Rajasthan Patrika dated 17.5.93 and on 19.5.93 in daily news paper Pratah Kal. The declaration u/s 6 of the Act dated 17.5.94 was published in Rajasthan Gazette dated 24.5.94 and further published in Rajasthan Patrika dated 9.10.94.

3. It is contended by the counsel for the petitioners that the substance of the notification as required u/s 4(1) was not published whereas it is submitted by the counsel for the respondents that the substance of the notification was published at a convenient place in (he locality on 13.11.92 and thus there is compliance of the provisions of Section 4 of the Act.

4. u/s 4 of the Act whenever it appears to the appropriate Govt. that land in any locality is needed or is likely to be needed for any public purpose or for a company, a notification to that effect shall be published (i) in the Official Gazette, (ii) in two daily news papers having circulation in that locality on which at least one shall be in the regional language, (iii) or otherwise giving public notice of the substance of the notification at convenient places in the locality. A bare perusal of Section 4(1) clearly shows that in order to comply with the statutory requirement set out therein, a notification stating that the land is needed or is likely to be needed for public purpose has to be published in Official Gazette. The second part of sub-section provides that the notification shall be published in two daily news papers having circulation in that locality of which at least one shall be in the regional language and that the Collector has to cause public notice of the substance of such notification to be given at convenient places in the locality in which land proposed to be acquired is situated. All the conditions are mandatory. As the notification u/s 4(1) initiates proceedings for acquisition of land, the word "shall" used in the section shall give expression to the mandate of the legislature for such publication, which is required for the legal commencement of the acquisition proceedings. In State of Harayana v. Raghubir Dayal (1995) 1 SCO 133, it has been held by the Supreme Court that the word ''shall'' used in Section 4(1) should be construed to be mandatory because the requirement of Section 4(1) of the publication of the notification in the Gazette followed by their publication in the newspapers perhaps in some cases may not meet the needed purpose of notice to the owner or person claiming interest in the land proposed to be acquired and they would come to know only if the substance of the notification is published (announced) in the village by beat of drum. Therefore, publication of the substance of the notification of Section 4(1) in the locality is mandatory but it is not the requirement of the law that it be done simultaneously with the publication in the Gazette or newspapers.

5. According to the respondents, the notification was published by affixture on 13.11.92 and in support thereof, a document Annex. R/l was filed, which indicates the date of notification as 17.5.94, published in Gazette on 24.5.94 and, therefore, it was submitted by the counsel for the petitioners that the notification u/s 4 could not have been published on 13.11.92 containing the date 17.5.94 published in the Gazette dated 24.5.94. The respondents have filed addenda explaining the position, that while giving the notification for typing to be filed as an Annexure in the Court, somebody thought it to be a notification u/s 6 of the Act and, therefore, the date of notification dated 21.2.90 and its publication dated 4.6.92 were circled by pencil and the dates above them were written as 17.5.94 the date of notification, 24.5.94 as date of publication, those dates were typed and copy thereof was filed in the Court as Annex. R/l. The notification dated 13.11.92 in fact shows the date of notification u/s 4 as 21.2.90 and its Gazette publication on 4.6.92. The correct document is filed as Annex. R/1A. I have called for the original record and have seen the notification dated 13.11.92. The submission made by the respondents in. the addenda is found to be correct. It is further fortified from another document, which has been filed by the respondents a letter dated 1.10.92 showing the notification u/s 4(1) to be 21.2.90 published on 4.6.92. This document contains the endorsement at the bottom dated 13.11.92 that the said notification be published at Bhuwana Mandal Patwar and U.I.T. Quarters. Annex. R/ 1A contains the endorsement that the notices are so affixed at Patwari Mandal Bhuwana and at the constructed quarters at Bhuwana with the notification u/s 4. The documents clearly prove that the notification u/s 4(1) was also published by affixture and there is full compliance of Section 4(1) of the Act.

6. The notification u/s 4 was published in two newspapers dated 31.3.90 and 1.4.90 before the publication of the Gazette notification. The notification was again published in the newspapers dated 17.5.93 and 19.5.93 and thereafter the publication was made by affixture on 13.11.92. A declaration u/s 6 of the Act was published in Gazette on 24.5.94. In the aforesaid state of facts, it was contended by the counsel for the petitioners that the final publication of the notification was effected on 13.11.92 and, therefore, publication of the declaration u/s 6 dated 24.5.95 is beyond the period of one year. As consequence thereof the acquisition has come to an end and no further steps could be taken for acquisition of the lands of the petitioners. It was submitted by the counsel for the respondents that the publication of the notification u/s 4 shall be taken to be on 19.5.93. That a writ petition was filed by the Gram Panchayat, Bhuwana, challenging the notification in question u/s 4(1) of the Act. The said writ petition was registered as S.B. Civil Writ Petition No. 2255/91. In that case, this Court had granted stay on 20.5.91 which stood vacated on dismissal of the petition on 28.10.94 and, therefore, Explanation 1 of Section 6(1) is attracted and the publication of the declaration is within the period permissible.

7. Section 6(1) proviso (ii) lays down that no declaration in respect of any particular land covered by notification u/s 4 Sub-section (1) be published after the commencement of the Land Acquisition Act, 1984 after the expiry of one year from the date of the publication of the notification. What shall be the date of publication of notification u/s 4 for the commencement of the period of limitation of one year? Section 4 provides that the notification shall be published in the Official Gazette in two daily newspapers and by publication of the substance of the notification by affixture or otherwise at the convenient places in the said locality. As per Section 4, the last date of such publication and the giving of such public notice shall be referred as the date of publication of the notification. Therefore, the last date of any mode of publication shall be taken to be the date of publication of the notification u/s 4 of the Act. The further question which requires answer is which shall be the last date. The date 13.11.92 notice by affixture being the last date of publication taking into consideration publication in the Gazette and in two newspapers which are prior to that date being 4.6.92, 31.3.90 and 1.4.90 respectively or the last date of the date on which the notification was published in the newspapers on 19.5.93.

8. The notification is a clear expression of a decision of the Government to acquire land, unless the decision is notified in the Gazette, the proceedings for acquisition cannot be said to have been notified and the decision would not come into effect. Section 4(1) further requires that the said notification be published in two daily newspapers and the Collector shall cause public notice of the substance of such notification to be given at convenient places in the said locality. The expression "such notification" in the later part of Section 4(1) clearly spells out that the Govt. has reached to a decision to acquire land, and publish the notification u/s 4(1) in the Official Gazette and then simultaneous of the publication, or within a reasonable time from the date of publication of the notification in the Gazette cause a notice to be published containing the substance of such notification in two daily newspapers and by affixture. It is manifest from Section 4 that publication of notification in the newspapers or the publication of substance of such notification by the Collector cannot precede the Gazette Notification. The notification should either be issued simultaneously or within a reasonable time after the publication of the Gazette Notification. That being the case the publication of the notification dated 31.3.90 and 1.4.90 in the newspapers, which are prior to the Gazette Notification dated 4.6.92 cannot be treated to be publication in compliance of Section 4(1) of the Act. Therefore, publication of the notification in the newspaper Pratah Kal on 19.5.93 shall be the date on which the notification shall be said to have been published u/s 4(1) of the Act.

9. But even taking the date 19.5.93 as the publication date of the notification u/s 4(1), the declaration having made on 24.5.94 would be beyond the period of one year unless the respondents are entitled for the period under explanation 1 of Section 6(1) of the Act. It has been held in Krishi Utpadan Mandi Samiti and Another Vs. Makrand Singh and Others, that for the purpose of limitation prescribed under proviso to Section 6(1), the computation shall be from the last of the dates of publication of notification u/s 4(1) to the date of publication of declaration u/s 6 in the Official Gazette and not in the newspaper. Thus, the last date shall be the publication of the declaration in the Gazette u/s 6 of the Act i.e. 24.4.94.

10. Clause (ii) of the proviso to Section 6(1) provides publication of the declaration in Official Gazette and it should be within one year from the date of publication of notification u/s 4(1) i.e. last of the dates referred to in Section 4(1). Under first proviso to Section 6(1) as amended in the Land Acquisition Act (Amendment); Act 68 of 1984, no declaration in respect of any particular land covered by notification u/s 4(1) shall be published after the expiry of one year from the date of publication of the notification. Explanation 1 thereto contemplates the method or mode of computation of the period referred to in the first proviso, that is the period during which any action or proceeding be taken in pursuance of the notification issued under Sub-section (1) of Section 4 being "stayed by the Court shall be excluded". The exclusion is of the period during which the order of the Court is operative.

11. In S.B. Civil Writ Petition No. 2255/91 filed by Gram Panchayat, Bhuwana, a declaration is sought for in respect of the land of Khasra No. 2661, 2691 and 2835 of village Bhuwana, Tehsil Girwa, District Udaipur, which is part of the land in question under the notification. The area of Khasra according to the notification 26.2200 hectares for Khasra No. 2661, 26.2800 hectares for Khasra No. 2691 and 9.3900 hectares for Khasra No. 2835. In the writ petition relief was sought, among others that the Collector''s order by which the character of the land in dispute has been ordered to be changed from the pasture land to abadi land, be quashed. Order may be issued to the U.I.T. not to make any allotment to any person of the land of Khasra No. 2661, 2691 and 2835 of village Bhuwana and notification issued u/s 4(1) on 21.2.90 may kindly be also quashed. The High Court vide its order dated 20.5.91 had passed the following order on stay:

Issue notice.

Meanwhile the status quo as it exists today, with respect to the land in question will be maintained.

On 28.10.94, the order records in the main petition "Counsel for the petitioners states that he does not want to press this writ petition and wants to withdraw the same The writ petition is therefore, dismissed as withdrawn." The order is passed in the stay file on 28.10.94 "In view of the order passed in the main petition, the stay application stand disposed of." Thus, the order granted by the Court of status quo in respect of part of the land on 20.5.91 was vacated on 28.10.94. Whether the respondents are entitled to claim this period between 20.5.91 to 28.10.94 under Explanation 1 to Section 6(1) of the Act? The submission of the learned Counsel for the petitioners is that in the present cases the notification u/s 4(1) of the Act was published on 19.5.93 and, as the declaration u/s 6 was not published within a period of one year from the date of the notification u/s 4, the entire proceedings for acquisition lapses. It is further submitted that by Explanation 1 of Section 6, the only period excluded in computing the period of one year is the period during which any action or proceeding taken in pursuance of the notification u/s 4, Sub-section (1) are stayed by order of the Court.

12. In Yusufbhai Noormohmed Nendoliya Vs. State of Gujarat and another, High Court had stayed delivery of possession after Section 6 declaration was published and the question arose whether that stay would ensure to the benefit of the State under Explanation to Section 11A of the Act for passing an award, delivery of possession being an act required to be performed after the award is given in the matters where Section 17 of the Act was not brought into service. Construing the words "the period during which any action or proceeding to be taken in pursuance of the said declaration is stayed by an order of a Court." The apex Court has held that the explanation is in the widest possible terms and there is no warrant for limiting the action or proceeding referred to in the explanation, preceding making of the award.

13. In Sangappa Gurulingappa Sajjan v. State of Karnataka 1994 L.A.C.C. 604 (SC) pending validity of the notification u/s 4(1) of the Land Acquisition Act, the High Court granted stay of dispossession and the Supreme Court held as under

Admittedly, pending writ petition on both the occasions the High Court granted "stay of dispossession". Admittedly, the validity or tenability of the notification issued and published u/s 4(1) is subject of adjudication before the High Court. Till the writ petitions are disposed of or the appeals following its heels, the stay of dispossession was in operation. Though there is no specific direction prohibiting the publication of the declaration u/s 6, no useful purpose would be served by publishing Section 6(1) declaration pending adjudication of the legality of Section 4(1) notification. If any action is taken to pre-empt the proceedings, it would be stigmatised either as "undue haste" or action to "overreach the court''s judicial process". Therefore, the period during which the order of dispossession granted by the High Court operated, should be excluded in computation of the period of three years covered by Clause (1) of the first proviso to the Land Acquisition Act.

14. The case in hand, stands on much stronger footing for State, pending challenge of the notification u/s 4 of the Act of the large portion of land under acquisition the High Court has granted status quo in respect of these lands, that is to say no further steps in regard to those lands was permissible that includes issuance of the declaration u/s of the Act. The stay was granted on 20.5.91 and was vacated on 28.10.94 so till then State was prohibited from taking any action or proceedings in pursuance of the notification issued u/s 4 of the Act. Mr. Dinesh Maheshwari, learned Counsel for the petitioners submitted that the stay order passed by the High Court should be read and understood in the back ground of the stay prayed for, that is the U.I.T. be restrained from allotting plots and "direction not to raise any construction over the land in dispute. I do not think this would be correct proposition of law. The order passed by the Court should be Interpreted and construed on the basis of the controversy involved in the case and not on the basis of the prayer made in stay application. Court''s jurisdiction to pass an order cannot be curtailed by prayer made stay application but would only be limited by the controversy involved the case. Admittedly, validity of Section 4(1) notification of the Act was the subject matter of dispute before the High Court in a writ petition and, therefore, order of "status quo" passed by the High Court would mean staying all proceedings regarding acquisition in pursuance of the notification issued u/s 4(1) of the Act.

15. Therefore, the period during which the order of the High Court in S.B. Civil Writ Petition No. 2255/91 (S.B. Civil Misc. Stay Petition No. 2045/91) was operative should be excluded in computation of the period of one year covered by Clause (1) of the first proviso of the section. When it is so computed, the declaration published on 24.5.94 is perfectly valid being made within the time permitted under the Statute.

16. It is then contended by the counsel for the petitioners that the State Govt. has taken a decision on 21.2.90 for acquisition of the land for the U.I.T. and long time has elapsed between decision and declaration of the notification u/s 6 on 21.4.94 and, therefore, the acquisition was not bonafide and genuine, the whole proceeding is required to be quashed. It has been held in Deepak Pahwa and Others Vs. Lt. Governor of Delhi and Others, that every time-gap between the publication in the Gazette and the public notice in the locality is not fatal to the acquisition. Thus, there cannot be any general principle that an acquisition would be regarded as void if the notification published in the Official Gazette was not accompanied or immediately followed by the public notice. However, it cannot be said that the publication and 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 bonafides 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 caused prejudice to anyone. Apart from the fact that the matter was pending in the High Court and stay order granted, it has not been alleged in the petitions that the delay has caused prejudice nor is being substantiated that the delay, caused any prejudice to the petitioners. That being the case, the submission made cannot be accepted.

17. It is submitted by the counsel for the respondents that the petitioners in S.B. Civil Writ Petition No. 1126/96, 1526/96 & 1551/96 are the purchasers of the land after the notification u/s 4(1) was published in the Official Gazette and no right is vested in them in the property purchased and, therefore, they have no locus stand to challenge the acquisition. The argument is refuted by the counsel for the petitioners on the submissions that u/s 16 of the Act when the Collector has made an award u/s 11 and in pursuance thereof, takes possession of the land, thereupon the land acquired shall vest absolutely in the Govt. free from all encumbrances and not before that. The argument of the counsel for the petitioners though attractive is no longer res Integra in view of the Supreme Court decision in Gian Chand Vs. Gopala and Others, in which it has been held that on publication of the notification in the Gazette u/s 4(1) of the Act, though it is not conclusive till declaration u/s 6 is published, the owner of the land is interdicted to deal with the land as a free agent and to create encumbrance thereon, or to deal with the land in any manner detrimental for public purpose. Therefore, though the notification u/s 4(1) is not conclusive the owner of the land is prevented from encumbering the land and such encumbrance does not bind the Govt. Any sale, transfer or encumbrance created by the owner of the land after publication of the notification u/s 4(1) would, therefore, be void and does not bind the State. In another decision reported in U.P. Jal Nigam, Lucknow through its Chairman and another Vs. M/s. Kalra Properties (P) Ltd. Lucknow and others, it has been held by the Supreme Court that it is settled law that after the notification u/s 4(1) is published in the Gazette any encumbrance created by the owner does not bind the Govt. and the purchaser does not acquire any right, title or interest in the property. As the petitioners have purchased the lands after the notification u/s 4(1) of the Act was published, sales would be void against the State. Thus, the petitioners have no locus stand to challenge the validity of the notification issued u/s 4(1) of the Act or the declaration made u/s 6 of the Act.

18. It is further faintly argued that the lands in question are situated within the territorial limits of Gram Panchayat, Bhuwana, and, therefore, Panchayat alone has a right to develop the lands and no other authority has any power to develop those lands. There is complete absence of material facts in the petitions that the lands in question belong to the Gram Panchayat and is not an urban area. Section 29 of the Rajasthan Urban Improvement Act, 1959 authorises the Trust to frame a scheme in respect of urban area. In the absence of material facts that the land in question is not an urban area, the submission, made by the counsel for the petitioners is without any substance. It cannot stand on its own legs and, therefore, rejected.

19. For the reasons stated above, the petitions are dismissed. There shall, however, be no order as to costs.