Rajendra Singh vs State Of U.P. & 4 Others
2017 Latest Caselaw 1462 ALL

HIGH COURT OF JUDICATURE AT ALLAHABAD
 
 

AFR
 
Court No. - 39
 

 
Case :- WRIT - C No. - 56497 of 2014
 

 
Petitioner :- Rajendra Singh
 
Respondent :- State Of U.P. & 4 Others
 
Counsel for Petitioner :- V.K. Jaiswal
 
Counsel for Respondent :- C.S.C.,Mahendra Pratap
 
With Writ Petition No's.- 
 
57312 of 2014, 57314 of 2014, 57520 of 2014, 57522 of 2014, 58528 of 2014, 58526 of 2014, 58531 of 2014, 58534 of 2014, 58536 of 2014, 58537 of 2014, 58542 of 2014, 58544 of 2014, 58548 of 2014, 58549 of 2014, 58551 of 2014, 58553 of 2014, 58554 of 2014, 58555 of 2014, 58556 of 2014, 58558 of 2014, 58651 of 2014, 58810 of 2014, 58811 of 2014, 58812 of 2014, 58813 of 2014, 58814 of 2014, 58815 of 2014, 58950 of 2014, 58952 of 2014, 59031 of 2014, 59033 of 2014, 59036 of 2014, 59037 of 2014, 59039 of 2014, 59043 of 2014, 59045 of 2014, 59049 of 2014, 59051 of 2014, 59053 of 2014, 59055 of 2014, 59056 of 2014, 59122 of 2014, 59123 of 2014, 59124 of 2014, 59125 of 2014, 59126 of 2014, 59127 of 2014, 59130 of 2014, 59131 of 2014, 59132 of 2014, 59133 of 2014, 59152 of 2014, 59153 of 2014, 59154 of 2014, 59156 of 2014, 59158 of 2014, 59160 of 2014, 59162 of 2014, 59177 of 2014, 59178 of 2014, 59302 of 2014, 59303 of 2014, 59314 of 2014, 59315 of 2014, 59316 of 2014, 59789 of 2014, 59782 of 2014, 60257 of 2014, 60255 of 2014, 60253 of 2014, 60468 of 2014, 60453 of 2014, 60459 of 2014, 60462 of 2014, 60465 of 2014, 60467 of 2014, 60469 of 2014, 60471 of 2014, 60620 of 2014, 61691 of 2014, 61698 of 2014, 61701 of 2014, 62054 of 2014, 62058 of 2014, 62285 of 2014, 62291 of 2014, 62323 of 2014, 62275 of 2014, 62824 of 2014, 62333 of 2014, 58239 of 2014, 59163 of 2014, 58546 of 2014, 58048 of 2014, 58046 of 2014, 58045 of 2014, 58237 of 2014, 58240 of 2014, 58248 of 2014, 63220 of 2014, 65572 of 2014, 65567 of 2014, 65571 of 2014, 65557 of 2014, 65560 of 2014, 67433 of 2014
 

 
Hon'ble Dilip Gupta,J.

Hon'ble Prabhat Chandra Tripathi,J.

(Delivered by Hon'ble Dilip Gupta,J.)

These writ petitions seek to challenge the notification dated 26 February 2013 issued under Section 4 (1) of the Land Acquisition Act, 18941 for acquisition of 124.3483 hectares of land for a public purpose, namely, Transport Nagar and Vadijya Kendra Scheme of the Ghaziabad Development Authority2 in district Ghaziabad and the declaration dated 23 July 2014 issued under Section 6 of the Act.

The petitioners contend that the acquisition proceedings have been rendered void and deserve to be quashed for the reason that the declaration under Section 6 of the Act was not made within one year from the date of publication of the notification issued under Section 4 (1) of the Act. For this submission it is stated that the notification dated 26 February 2013 issued under Section 4 (1) of the Act was published in the Gazette on 9 March 2013 and in the two newspapers on 22 March 2013. According to the petitioners, public notice of the substance of the notification was given at convenient places in the locality on 23 March 2013 and, therefore, the date of publication of the notification under Section 4 (1) of the Act would be 23 March 2013, it being the last of the dates of publication of the Section 4 (1) notification and the giving of public notice. The contention is that the declaration that was made under Section 6 (1) of the Act on 23 July 2014 is not within one year of the publication of the Section 4 (1) notification as is contemplated under the first proviso to Section 6 (1) of the Act.

The stand of the State and the Development Authority, however, is that though public notice of the substance of the notification under Section 4 (1) of the Act was given at convenient places on 23 March 2013, but it was also caused by beat of drums on 24 July 2013 and, therefore, the date of publication of the Section 4 (1) notification would be 24 July 2013 and not 23 March 2013. It is, therefore, the contention of the State and the Development Authority that the acquisition would not be rendered void since the declaration was made on 23 July 2014 within one year from 24 July 2013.

The sole issue that arises for consideration in these petitions, therefore, is whether the declaration under Section 6 (1) of the Act was made within one year of the publication of the notification issued under Section 4 (1) of the Act. This would depend on whether public notice of Section 4 (1) notification was given on 23 March 2013, as contended by the petitioners, or on 24 July 2013 as contended by the State because this would determine the date of publication of the Section 4 (1) notification, which in turn would determine the starting point for calculating the period of one year within which the declaration under Section 6 of the Act has to be made.

The Court had summoned the original records pertaining to the acquisition from the office of the Collector and also the State Government. The learned Standing Counsel has produced the records maintained in the office of Collector, Ghaziabad.

We have perused the records and also the affidavits filed by the State and the Development Authority.

It will be appropriate, to first, to refer to the provisions of Sections 4 (1), 5-A (1) and 6 of the Act to appreciate the contentions advanced by the learned counsel for the petitioners, the learned Standing Counsel for the State-respondents and Sri Mahendra Pratap Singh, learned counsel appearing for the Development Authority.

Section 4 (1) of the Act is as follows:-

"4. Publication of preliminary notification and powers of officers thereupon.─ (1) Whenever 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, a notification to that effect shall be published in the Official Gazette and in two daily newspapers circulating in that locality of which at least one shall be in the regional language and the Collector shall cause public notice of the substance of such notification 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 notification."

Section 5A (1) of the Act is as follows:-

"5A. Hearing of objections.─ (1) Any person interested in any land which has been notified under section 4, sub-section (1), as being needed or likely to be needed for a public purpose or for a company may, within thirty days from the date of publication of the notification, object to the acquisition of the land or of any land in the locality, as the case may be."

Section 6 of the Act is 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 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 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):

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, 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:

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.

(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 where 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 acquire the land in manner hereinafter appearing."

A perusal of Section 4 (1) of the Act indicates that whenever it appears to the appropriate Government that land in any locality is needed or is likely to be needed for any public purpose, a notification to that effect shall be published in the Official Gazette and 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. It also provides that the last of the dates of such publication and the giving of such public notice shall be referred to as the date of the publication of the notification.

Section 5A (1) of the Act provides that any person interested in any land which has been notified under Section 4 sub-section (1) of the Act as being needed or likely to be needed for public purpose may, within thirty days from the date of the publication of the notification, object to the acquisition of the land.

Section 6 (1) of the Act provides that when the appropriate Government is satisfied that the land is needed for a public purpose, it shall make a declaration. The first proviso, however, stipulates that no declaration shall be made after the expiry of one year from the date of publication of the Section 4 (1) notification. Section 6 (2) requires that the publication of the declaration should be made in the same manner as publication of Section 4 (1) notification. Section 6 (3) provides that the said declaration shall be conclusive evidence that land is needed for a public purpose.

It needs to be noted that the first proviso to Section 6 (1) talks of making of the declaration under Section 6 (1) and not its publication under Section 6 (2). Thus, it is the declaration under Section 6 (1) of the Act that has to be made within one year from the date of Section 4 (1) publication. This has also been made clear by the Supreme Court in S.H. Rangapaa v. State of Karnataka and Another3. The Supreme Court, following its earlier decision in Khadim Hussain v. State of U.P.4, observed that it is the declaration under Section 6(1) of the Act that has to be made within one year from the date of publication of Section 4(1) notification and not the publication of the Section 6(1) declaration that is required to be done under Section 6(2) of the Act. The relevant paragraphs 7, 8 and 9 of the judgment are reproduced below :-

"7. 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 5-A 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) 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.

8. We wish to clarify that the words "publish" and "from the date of publication of the notification" occurring 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 the declaration is conclusive evidence that the land is needed infer 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. Sub-section (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.

9. 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 sub-section (2) of Section 6. If the contention of Mr. G.L. Sanghi, the learned 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 declaration 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 Section 6(1) 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 the requirement of the making of the declaration under Section 6(1) within a prescribed period. It is difficult for us to read into sub-section (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)."

(emphasis supplied)

This view was reiterated by the Supreme Court in Sriniwas Ramnath Khatod v. State of Maharashtra and Others5. The relevant paragraphs 12 and 13 are reproduced below:-

"12. In our view the wordings of Sections 4, 6 and 11-A leave no room for doubt that the Land Acquisition Act made a distinction between a "declaration" and "publication". To be noted that under Section 4 the notification has to be published. Again under Section 11-A the period of two years has to be computed from the date of "publication of the declaration". As distinct from this under the first proviso to Section 6(1) a "declaration" cannot be made after the expiry of one year from the date of "publication of the notification under Section 4". The word published in clauses (i) and (ii) of the first proviso to Section 6(1) refers to the publication of notification under Section 4. A plain reading of Section 6 shows that a distinction is made between a "declaration" and a "publication". Viewed from this angle the wording of the first proviso to Section 6(1) becomes important. The proviso lays down that "no declaration (under Section 6) shall be made after expiry of three years [under clause (i)] where the notification under Section 4 is published before the commencement of the Land Acquisition (Amendment) Act, 1984 and after expiry of one year [under clause (ii)] where notification under Section 4 was published after commencement of Land Acquisition (Amendment) Act, 1984. Thus, the proviso clearly talks of "publication" in respect of notification under Section 4 and then provides a time for "making of declaration" under Section 4. The legislature is purposely omitting to use the words "publication of declaration" in the proviso to Section 6.

13. In our view, it is clear that the "declaration must be made" within one year from the date of "last publication of the notification" under Section 4. Thereafter the publication under Section 6(2) may take place at a later date as it is merely a ministerial act."

(emphasis supplied)

It is keeping in mind the aforesaid provisions of the Act that the facts relating to acquisition of land have to be examined.

In paragraph 5 of Writ Petition No. 57312 of 2014, it has been stated that public notice of the notification issued under Section 4 (1) of the Act was given at convenient places on 23 March 2013. It has also been stated in paragraph 7 of the said writ petition that a public notice was also issued on 11 May 2013 intimating that the objections filed under Section 5A of the Act would be decided on 14 May 2013. It has further been stated in paragraph 9 of the said writ petition that the alleged public notice dated 24 July 2013 is a document prepared only for extending the period within which the declaration under Section 6 (1) of the Act could be made as public notice of Section 4 (1) notification had actually been given on 23 March 2013 and in fact no public notice was caused on 24 July 2013. In this connection, reference has also been made to a letter dated 17 June 2014 sent by the Commissioner/ Director (Land Acquisition) to the Collector, Ghaziabad wherein it has been stated that when public notice of the Section 4 (1) notification was caused on 23 March 2013, there was no reason to cause another public notice by beat of drums after a long lapse of four months and it appears that it was caused since the period of one year from the date of publication of Section 4 (1) notification had already lapsed.

In the counter affidavit filed by the State in the aforesaid Writ Petition No. 57312 of 2014, it has been stated that though public notice of the Section 4(1) notification was caused on 23 March 2013, but "Munadi" was also made on 24 July 2013 by beat of drums and that objections raised by the Commissioner/ Director (Land Acquisition) in the communication dated 17 June 2014 were duly replied to by the Collector and, thereafter the declaration was made under Section 6 (1) of the Act on 23 July 2014. The Development Authority has also filed a counter affidavit, wherein it has been stated that the office of the A.D.M. (L.A.) Ghaziabad has informed that the Gram Pradhan was requested by letter dated 21 March 2013 to cause 'Munadi' of the Section 4 (1) notification in village Duhai and that 'Munadi' by beat of drums was caused on 24 July 2013.

On examination of the records produced by the learned Standing Counsel, it transpires that the notification dated 26 February 2013 issued under Section 4 (1) of the Act was published in the Gazette on 9 March 2013 and in the two newspapers on 22 March 2013. For causing public notice of the said notification, the A.D.M. (L.A.) Ghaziabad endorsed the Section 4 (1) publication notice dated 21 March 2013 to the Secretary of the Development Authority for affixing it on the notice board of the Development Authority, to the Nazir Tehsildar, Ghaziabad for affixing it on the notice board of the Tehsil, to the Block Development Officer, Ghaziabad for affixing it on the notice board of the Block Development Office and to the Gram Pradhan/Corporator, Village Duhai, Sub-Division Jalalabad, Tehsil and District- Ghaziabad for causing 'Munadi' by beat of drums. The aforesaid notice is said to have been received by the aforesaid persons on 23 March 2013. On record, there is also a service report of the Process Server. The Process Server has, on oath, stated that on 23 March 2013 he went to Gram Duhai and served a copy of the notice on both the village Pradhan and interested persons. It also states that the notice was affixed at public places, namely, Gram Panchayat Bhawan/ School building/ Notice Board of Block/ Tehsil Notice Board/ Collectorate Nazarat Notice Board and also in the office of Special Land Acquisition Officer. This report has been countersigned by the Additional District Magistrate (L.A.) and District Magistrate, Ghaziabad and also the Tehsildar of the Development Authority.

The records also indicate that on the same date i.e. 23 March 2013, the Additional District Magistrate (L.A.) issued a notice inviting objections under Section 5A of the Act from persons interested in the land. The notice mentions that objections can be filed upto 23 April 2014. The records also indicate that thereafter a public notice was issued on 9 May 2013 informing the persons who had filed objections under Section 5A of the Act that personal hearing would take place on 14 May 2013 at 3:00 p.m. in the office of the Additional District Magistrate (L.A.) for disposal of the objections. This notice was also published in the newspaper on 11 May 2013 in Bharat Times (NCR).

The records also contain a document that indicates that subsequently public notice of Section 4 (1) notification was also caused by beat of drums on 24 July 2013.

It is in the light of the aforesaid facts that the date of publication of Section 4 (1) notification has to be determined. This would depend on whether the public notice contemplated under Section 4 (1) of the Act was caused on 23 March 2013 or on 24 July 2013 since the last of the dates of publication of Section 4 (1) notification and the giving of public notice is the date of publication of Section 4 (1) notification. Section 4(1) notification dated 26 February 2013, as noted above, was published in the Gazatte on 9 March 2013 and in the two newspapers on 22 March 2013. Public notice of the substance of the notification was caused, according to the petitioners on 23 March 2013, while according to the State on 24 July 2013. The date of publication of the Section 4 (1) notification, therefore, would either be 23 March 2013 (according to the petitioners) or 24 July 2013 (according to the State). The declaration under Section 6 of the Act was made on 23 July 2014. Thus, if 23 March 2013 is the date of publication of Section 4 (1) notification, the acquisition proceedings would stand vitiated since the making of the declaration would not be within one year of the publication of Section 4 (1) notification. It is for this reason that learned counsel for the petitioners contended that the State has made an attempt to save the acquisition by stating that though public notice of the substance of Section 4 (1) notification was caused on 23 March 2013, but it was also caused by beat of drums on 24 July 2013.

According to learned counsel for the petitioners, public notice of the substance of Section 4 (1) notification was actually caused on 23 March 2013 when the notice was affixed at prominent places at the Gram Panchayat Bhawan, School buildings, Block Notice Board, Tehsil Notice Board, Collectorate Nazarat Notice Board and the office of the Land Acquisition Officer and, therefore, it was not at all necessary to cause another public notice by beat of drums and that too after four months.

To test this submission, it would be useful to examine how the State proceeded after the public notice of Section 4 (1) notification was caused on 23 March 2013. We find from the records that the State itself proceeded on the footing that public notice of the substance of Section 4(1) notification was caused on 23 March 2013. This is for the reason that a notice dated 23 March 2013 was issued by A.D.M. (L.A.) inviting objections to the acquisition of the land within thirty days upto 23 April 2013 since under Section 5A of the Act objections can be filed within thirty days from the date of the publication of the Section 4(1) notification. Thus, the State itself was clear that all the three modes contemplated under Section 4 (1) of the Act stood completed on 23 March 2013 when public notice of the substance of the notification was caused on 23 March 2013. If that was not so, the A.D.M. (L.A.) would not have issued the public notice dated 23 March 2013 because objections can be invited only within thirty days from the date of publication of the Section 4 (1) notification. Not only objections were invited by the notice dated 23 March 2013, but the A.D.M. (L.A.) also issued a notice dated 9 May 2013 fixing 14 May 2013 as the date of hearing of the objections filed under Section 5A of the Act. This notice was also published in the newspapers. It is, therefore, more than apparent that the State itself treated that public notice of the substance of the notification under Section 4 (1) of the Act had been caused on 23 March 2013 and nothing more remained to be done.

The declaration under Section 6 (1) of the Act has to be made within one year from the date of publication of the notification under Section 4 (1) of the Act. It appears that later on when the declaration under Section 6 (1) of the Act could not be made before 22 March 2014, it was realized that the acquisition proceedings would be rendered illegal and, therefore, to overcome this, public notice by beat of drums was caused on 24 July 2013. What is also important to notice is that the public notice was given after a long lapse of four months on 24 July 2013 and it refers to the order dated 21 March 2013 of the A.D.M.(L.A.).

All that is contended by the learned Standing Counsel is that because of agitation by the farmers, public notice could not be given by beat of drums on 23 March 2013 and was, therefore, subsequently given on 24 July 2013. There is, however, no noting of the Gram Pradhan or any other person in the file which may indicate that public notice by beat of drums could not be caused on 23 March 2013 because of agitation of the farmers. Even the order sheet contained in the file does not indicate any report of the person authorised to give public notice by beat of drums that it was not possible to cause public notice on 23 March 2013 or immediately thereafter.

There is, therefore, no manner of doubt that public notice of the substance of the notification issued under Section 4 (1) of the Act was caused on 23 March 2013 when it was not only served upon the Gram Pradhan but also affixed at public places, namely, Gram Panchayat Bhavan/ School building/ Block Notice Board/ Tehsil Notice Board/ Collectorate Nazarat Notice Board and the office of the Special Land Acquisition Officer.

In fact, a query was also raised by the Director/ Commissioner (Land Acquisition) in his letter dated 17 June 2014 as to why public notice of Section 4 (1) notification was given by beat of drums also after four months when public notice had been given on 23 March 2013. A doubt was also expressed as to whether it was given because one year had lapsed after the date of publication of Section 4 (1) notification. All that has been stated by A.D.M. (L.A.) in his response dated 10 July 2013 is that the farmers had objected to the acquisition and so public notice by beat of drums was caused on 24 July 2013 after the Gram Pradhan was reminded of the same. Apart from this bald statement made in the communication dated 10 July 2013, there is nothing on the record to indicate that the Gram Pradhan was unable to cause public notice of the substance of the Section 4 (1) notification by beat of drums on 23 March 2013 or immediately thereafter. The records, however, do indicate that the farmers had in fact filed objections to the notice dated 23 March 2013 issued under Section 5A (1) of the Act and had appeared for personal hearing also. It is, therefore, clear that the document relating to causing public notice by beat of drums on 24 July 2013 was prepared only to bring the declaration made under Section 6 (1) of the Act within one year of the date of publication of the Section 4 (1) notification so as to save the acquisition.

At this stage, it may also be pertinent to examine as to whether public notice of the substance of Section 4(1) notification was really required to be given by beat of drums when the substance of the notification had already been affixed at prominent places in the village. A Division Bench of the High Court in Smt. Prakash and others v. The State of U.P. and another6 considered this issue and held that there is no requirement under Section 4(1) of the Act for publication of the notice by beat of drums. The Division Bench observed that Section 4(1) notification had not only been published in the Official Gazette but had also been published in the two newspapers and also at convenient places in the office of the Collector, Special Land Acquisition Officer, Nagar Palika, Kotwali, Tehsil, and so it was not necessary to publish it by beat of drums. The relevant paragraph 19 of the judgment is reproduced below:-

"19. The next contention has been that notices were not published in accordance with the prescribed procedure and that there was no publication of notice by beat of drums. After examining the record we found that compliance of Section 4(1) of the Act was made. The only requirement of publication under this section is that the notification shall be published in the official Gazette and in two daily newspapers circulating in that locality of which at least one shall be in the regional language and the Collector shall cause public notice of the substance of such notification to be given at convenient places in the said locality. It is not disputed that notification was published in the official Gazette Annexure 5 to the counter affidavit can be referred. It is disputed in the writ petition that notice was published only in 'Amar Ujala', but record shows that notices were published in daily 'Amar Ujala', and daily 'Aaj'. These two newspapers are in regional language namely Hindi and have circulation in the locality. It was not necessary to publish notice in the local newspaper as urged by the learned counsel for the petitioners. The second part was thus also complied with. There is no requirement under Section 4 of the Act for publication of notice by beat of drums. The substance of notification was published in convenient places in the said locality. Annexure 3 to the supplementary counter affidavit shows that substance of notification was published in the office of Collector, Special Land Acquisition Officer, Nagar Palika, Kotwali, Tehsil and acquired land. In this way effective compliance of Section 4 of the Act regarding publication of notice was made by the Collector."

(emphasis supplied)

Causing of public notice by beat of drums on 24 July 2013 was, therefore, unnecessary as public notice of the substance of Section 4 (1) notification was sufficiently caused on 23 March 2013 itself and causing of public notice by beat of drums cannot enlarge the time within which the declaration under Section 6 (1) of the Act has to be made.

In this connection, it would be pertinent to refer to the decision of the Supreme Court in Devendra Kumar Tyagi & Ors. Vs. State of Uttar Pradesh & others v. State of Uttar Pradesh & others7. The Supreme Court examined what would be the starting point of the limitation of one year stipulated under the proviso to Section 6(1) of the Act and the end point. The notification dated 3 July 2006 under Section 4(1) of the Act was published in two newspapers in Hindi language on 4 July 2006. The English version of this notification was also published subsequently in two daily newspapers on 24 January 2007. The declaration under Section 6 of the Act was made on 18 December 2007. It was published in two newspapers on 5 January 2008. A writ petition was filed before the Supreme Court under Article 32 of the Constitution for quashing the notification issued under Section 4 and the declaration made under Section 6 of the Act. The issue before the Supreme Court was as to whether the declaration made on 18 December 2007 under Section 6 (1) of the Act was within the period of limitation contemplated by the proviso to Section 6 (1) of the Act. It was sought to be contended by the writ petitioners that the declaration made on 18 December was beyond the period of one year from the date of publication of the notification issued under Section 4 (1) of the Act. To support this contention, it was contended that the publication of the Section 4(1) notification in two newspapers on 4 July 2006 was sufficient compliance of Section 4(1) notification and the period of limitation for making the declaration under Section 6 of the Act would, therefore, commence from 4 July 2006 and not from the date of the subsequent publication of the Section 4(1) notification on 24 January 2007 in two English newspapers. The petitioners, therefore, contended that the time gap between 4 July 2006 and 18 December 2007 was more than one year. It was, however, sought to be contended by the respondents that the period of limitation of one year would start from the date of the last publication of Section 4(1) notification on 24 January 2007 and since the declaration under Section 6(1) of the Act was made on 18 December 2007, it would be within one year. The Supreme Court held that publication of the English translation of Section 4(1) notification in two newspapers on 24 January 2007 was unnecessary and would not assist the respondents in extending the period of limitation. It was, therefore, held that the date of publication of Section 4(1) notification should be treated as 4 July 2006 when it was published in two Hindi newspapers. The Supreme Court concluded that since the declaration under Section 6 (1) of the Act was made on 18 December 2007, it would be beyond the period of limitation of one year as mandated by the proviso to Section 6(1) of the Act. Paragraphs 12, 13 and 14 of the judgment are reproduced below:-

"12. The notification under Section 4 has to be published in the manner laid down therein. As against this, under Section 6, a declaration has to be first made and that declaration is then to be published in the manner provided in Section 6(2) of the LA Act. Also, the proviso (ii) to Section 6(1) lays down a time-limit within which declaration has to be made. The said proviso (ii) significantly only provides a time-limit for a declaration and not for publication as it has been incorporated in sub-section (1) of Section 6 of the LA Act.

13. It is not in dispute that the declaration of the notification under Section 6 was issued on 18.12.2007. It is also not in dispute that the Notification under Section 4 was issued on 3.7.2006 and the same was published in two daily newspapers in Hindi language on 4.7.2006 having circulation in the locality where the land is situated. Also, the people at Pargana Hapur in the Ghaziabad District are well conversant with the Hindi language. In our considered view, the publication of the Notification in two newspapers having circulation in the locality where the land is situated and where people are well conversant with Hindi amounts to ample compliance with the requirement of the publication under Section 4(1) of the LA Act. In view of this, the subsequent publication of English translation of the said Notification under Section 4 in two newspapers on 5.1.2007 is unnecessary and will not assist the respondents to extend the period of limitation envisaged in the proviso to Section 6(1) of the LA Act. Hence, the last date of publication for the purpose Section 4(1) of the LA Act, which can be treated as date of publication, is the date on which, the second Notification under Section 4 was published in the newspaper, that is, 4.7.2006. Therefore, the period of limitation commences from 4.7.2006, which is the date of publication of the Notification under Section 4(1) of the LA Act.

14. If the declaration under Section 6 of the LA Act is made before the expiry of the period of one year starting from 4.7.2006, then, only such declaration will be considered as valid for the purpose of the acquisition of land. However, in the present case, the declaration under Section 6 was issued on 18.12.2007 which is clearly beyond the period of limitation of one year as mandated by the proviso to Section 6(1) of the LA Act. Therefore, the declaration of notification under Section 6 and its subsequent publications are clearly beyond the period of limitation of one year starting from the date of publication of notification under Section 4 of the LA Act. "

(emphasis supplied)

In the present case, public notice of the substance of Section 4(1) notification was caused on 23 March 2013 when it was affixed at prominent places like Gram Panchayat Bhawan, School building, Notice Board of Block, Tehsil Notice Board, Collectorate Nazarat Notice Board and also on the Notice Board of the Office of Special Land Acquisition Officer. The date of publication of Section 4(1) notification would, therefore, be 23 March 2013. The subsequent publication of the notification caused by beat of drums on 24 July 2013 was, therefore, unnecessary and would not help the respondents in extending the period of limitation contemplated by the proviso to Section 6(1) of the Act. In fact, the respondents, as noted above, also treated the date of publication of the Section 4 (1) notification as 23 March 2013 since objections under Section 5A of the Act were also invited on 23 March 2013 and thirty-days time upto 23 April 2013 was given for filing objections.

Reference also needs to be made to the decision of the Bombay High Court in Baban Hoamji Phadtare & Ors. v. The State of Maharashtra & Ors.8. Section 4(1) notification dated 22 August 2006 was published in the Gazette on 14 September 2006. It was contended that it was published in the two newspapers on 15 September 2006 and 18 October 2006 and public notice was affixed on the Notice Board of the office of the Special Land Acquisition Officer on 25 September 2006, in the office of Tehsildar on 8 November 2006. It was also contended that public notice was also affixed at Tehsil office of village-Bopgaon and Bhivari on 20 February 2007. It was, therefore, sought to be contended by the State Government that the date of publication of Section 4(1) notification was 20 February 2007. The declaration under Section 6 of the Act was made on 12 February 2008. The issue that arose before the Court was as to whether the declaration under Section 6 of the Act was made within one year from the date of publication of Section 4(1) notification. The Court examined as to whether public notice was caused on 20 February 2007 because if if it was not, then the declaration would be beyond one year. It was held that even assuming that public notice of the Section 4(1) notification was caused on 20 February 2007, then too it was an additional mode made long after 18 October 2006 when the publication by all the three modes was completed and the objections under Section 5A of the Act had also been heard. The Court, therefore, declared that the acquisition proceedings stood vitiated since the declaration was made after one year from the date of publication of Section Section 4(1) notification. The relevant observations are :-

"15. In the present case, assuming that there was a publication of the notification under sub-section (1) of Section 4 of the said Act in village Bopgaon on 20th February 2007, it was an additional publication made long after 18th October 2006 when the publication by all three modes was completed. The alleged publication of the notification under Sub-section (1) of Section 4 of the said Act in village Bopgaon on 20th February 2007 was not warranted at all. Moreover it is purportedly made after the hearing of the objections in accordance with section 5A was completed. Thus, only conclusion which can be drawn in the present case even on the admitted facts which are stated in the affidavits of the respondents is that the declaration under Section 6 of the said Act in the present case was made after the expiry of the period provided under Clause (ii) of Sub-section (1) of Section 6 of the said Act. In the circumstances, only on this ground that the acquisition proceedings initiated on the basis of the Notification dated 22nd August 2006 issued under Sub-section (1) of Section 4 of the said Act stand vitiated."

(emphasis supplied)

It, therefore, clearly transpires that the date of publication of the notification issued under Section 4 (1) of the Act is 23 March 2013, and the declaration was made under Section 6 (1) of the Act after one year on 23 July 2014. The first proviso to Section 6 (1) of the Act stipulates that no declaration in respect of any particular land covered by a notification under Section 4 (1) of the Act shall be made after the expiry of one year from the date of publication of the notification. Such being the position, the acquisition proceedings would be void as the declaration under Section 6 (1) of the Act was made after one year from the date of publication of the notification issued under Section 4 (1) of the Act. The notification issued under Section 4 (1) of the Act and the declaration made under Section 6 (1) of the Act, therefore, deserve to be set aside.

Sri Mahendra Pratap, learned counsel for the Development Authority has also very fairly stated that since possession of the acquired land could not be taken, no development could be undertaken by the Development Authority. The records also indicate that a communication dated 23 September 2016 was sent by the Officer on Special Duty of the Development Authority to the Additional District Magistrate (Land Acquisition) in connection with the making of the award of the land that had been acquired. The letter reproduces the decision taken by the Committee constituted by the Vice-Chairman of the Development Authority. The Committee resolved that since an area of 23.1861 hectares that was not covered by the interim orders passed by the High Court was not a compact area, it would not be possible for the Development Authority to use it for the Transport Nagar Scheme and, therefore, the award in regard to this land should not be made. The Development Authority, for whose benefit the land has been acquired, was, therefore, clearly not interested in acquisition of a portion of the land.

Thus, for all the reasons stated above, the notification dated 26 February 2013 issued under Section 4 (1) of the Act and the declaration dated 23 July 2014 made under Section 6 (1) of the Act are quashed. The aforesaid writ petitions are, accordingly, allowed.

Order Date :- 31.5.2017

Atmesh

(Dilip Gupta,J.)

(Prabhat Chandra Tripathi,J.)