Allahabad High Court
Mohd. Khalid And Others vs State Of U.P. And Others on 4 August, 2015
Bench: Arun Tandon, Ashwani Kumar Mishra
HIGH COURT OF JUDICATURE AT ALLAHABAD
Court No. - 9
Case :- WRIT - C No. - 68008 of 2010
Petitioner :- Mohd. Khalid And Others
Respondent :- State Of U.P. And Others
Counsel for Petitioner :- Shailendra,Umesh Narain Sharma
Counsel for Respondent :- C.S. C.,Anurag Khanna
With
Case :- WRIT - C No. - 36214 of 2015
Petitioner :- Syed Raees Uddin
Respondent :- State Of U.P. And 3 Ors.
Counsel for Petitioner :- Anwar Hussain
Counsel for Respondent :- C.S.C.,M.P. Rai
With
Case :- WRIT - C No. - 23896 of 2010
Petitioner :- Sumitra Singh
Respondent :- State Of U.P. Thru. P.S. Parivahan & Ors.
Counsel for Petitioner :- Ashish Dwivedi
Counsel for Respondent :- C.S.C.,Samir Sharma
Hon'ble Arun Tandon,J.
Hon'ble Ashwani Kumar Mishra,J.
Heard learned counsel for the parties and perused the record.
All these three writ petitions seek quashing of the notification dated 9.2.2009, issued under Section 4(1) of the L.A.Act, 1894 (hereinafter referred to as Act) and the declaration issued under Section 6(1) of the Act, dated 8.7.2010.
Sri Umesh Narain Sharma, learned senior counsel for the petitioner raised one short ground for challenging the notification issued under Section 6 of the Act, namely that it has been so made after expiry of more than one year from the last publication of notification published under Section 4 of the Act. It is explained that the last publication of notification under Section 4 of the Act by way of Munadi was done on 18th March, 2009, while the said notification was published in the official Gazette on 9th February, 2009. It is then submitted that declaration under Section 6(1) of the Act has been published only on 8th July, 2010, which is beyond one year by four months. It is submitted that in view of Section 6(1) of the Act, such declaration could not have been made, and it be declared as barred by limitation. It is explained that since the notification under Section 6 is barred by limitation, the notification under Section 4 would fall automatically.
The learned Standing Counsel on behalf of the respondents explains the delay with reference to various paragraphs of counter affidavit and the records annexed thereto.
In our opinion, Section 6(1) of the Act admits no exception with regard to the declaration being issued under Section 6(1) of the Act, within a period of one year from the last date of publication of notification under Section 4(1). Section 6(1) of the Land Acquisition Act, 1894 reads as follows :
"6 Declaration that land is required for a public purpose.
(1) Subject to the provisions of Part VII of this Act, 25 [when the] 26 [appropriate Government] is satisfied after considering the report, if any, made under section 5A, 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 signature of a Secretary to such Government or of some officer duly authorised to certify its orders 27 [ 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 5A, sub-section (2)]: 28 [ 29 [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 (Amendment and Validation) Ordinance, 1967 (1 of 1967) but before the commencement of the Land Acquisition (Amendment) Act, 1984 68 of 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 notification:]
30 [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 authority."
The law in this regard stands concluded by the authoritative pronouncement of Constitution Bench of Apex Court in Padma Sundara Rao vs. State of Tamilnadu, 2002(3)SCC 533 as followed in Anil Kumar Gupta Vs. State of Bihar, (2012) 12 SCC 443, wherein the provision of second Proviso to Section 6(1) of the Act 1894 has been held to be mandatory and its issuance beyond a period of one year is a nullity. Paragraph-18 of the judgment in Anil Kumar Gupta (supra) is reproduced below :
"We may now advert to the main question as to whether the declaration issued under Section 6(1) was a nullity because the same was issued after expiry of the period of one year specified in the first proviso (ii) to that Section. This issue is no longer res integra and must be treated as settled by the judgments of this Court in Padma Sundara Rao State of T.N., Ashok Kumar vs. State of Haryana and a recent judgment in Devender Kumar Tyagi v. State of U.P. In Padma Sundara Rao case the Constitution Bench unequivocally held that the second proviso to Section 6(1) is mandatory and a declaration issued beyond the period of one year from the last publication of the notification issued under Section 4(1) is nullity. In view of the proposition laid down in these judgments, it must be held that the learned Single Judge had rightly held that the declaration issued under Section 6(1) was non est."
In view of the law aforesaid, there is no other no other option but to hold that the declaration published under Section 6(1) dated 8.7.2010 is barred by second Proviso to Section 6(1) of the Act and the notification issued under Section 4(1) of the Act dated 9.2.2009 shall also fall automatically.
Consequently, both the notifications i.e. notification under Section 4(1) of the Act, dated 9.2.2009 and the declaration issued under Section 6(1) of the Act dated 8.7.2010 are quashed.
Accordingly the writ petitions are allowed.
Order Date :- 4.8.2015
Ashish Pd.
