Balasaheb S/O Vithalrao ... vs The State Of Maharashtra Through ...
2005 Latest Caselaw 129 Bom

JUDGMENT

M.G. Gaikwad, J.

1. The petitioners (land owners) have challenged the acquisition proceedings No. 1994/SSK/1/LNQ/CR/418 dated 12.1.95 whereby the respondents proposed to acquire the petitioners' lands for rehabilitation of flood affected persons and to quash and set aside the notification under Section 6 of the Land Acquisition Act, 1894 ('the Act' for short) issued by respondent.

2. The petitioners are owners of agricultural land Gat Nos. 259, 260, 273, 274 and 275 situated at village Nila, Tq. Purna, Dist. Parbhani. The Government of Maharashtra proposed to acquire these lands for public purpose viz. for rehabilitation of flood affected persons. Notification under Section 4 of the Act. was issued and published in Government Gazette dated 30.9.1993. The petitioners were not served with the notices under Section 4 of the Act. The petitioners have submitted their objections under Section 5-A of the Act (Annexure B). Inspite of objections personal opportunity of hearing was not given to the petitioners and lastly the notification under Section 6 of the Act was issued and notified in Government Gazette dated 12.1.1995.

3. The petitioners have challenged this notification as well as acquisition on the following grounds and prayed to quash and set aside the same.

(I) The Government has already acquired land Survey No. 95 and took possession of the said lands but no attempt was made to rehabilitate the flood affected persons.

(II) Petitioners lands are black cotton soil and are not at all feasible for construction of houses.

(III) Declaration under Section 6 of the Act is not made within time stipulated by Statute i.e. within one year from the date of notification under Section 4 of the Act.

4. We have heard learned Counsel Shri A.S. Deshmukh for petitioners and learned Additional Government Pleader Shri Khandare for State. The learned Government Pleader submitted purshis dated 4.2.2005 which was taken on record and marked as Exh, 'D'.

The facts are not disputed that preliminary notification under Section 4 of the Act declaring Government's intention to acquire petitioners' lands for extention of gaothan was published on 30.9.1993. Notification under Section 6 of the Act was published in Government Gazette dated 12.1.1995. Local publication was made on 19.3.1995. Thereafter draft award was prepared by Land Acquisition Officer on 4.10.1995 and submitted to Collector, Parbhani. It is admitted position as per purshis Exh. 'D' filed by Additional Government Pleader that final award has not yet been declared and published till this date.

5. It has been rightly pointed out by Shri Deshmukh learned Counsel for petitioners that the notification under Section 6 of the Act declaring the public purposes is not made or published within one year from the date of publication of notification under Section 4 of the Act. He has also pointed out that there is no proper publication of this notification as contemplated under Sub-section (2) of Section 6 of the Act. So said notification needs to be quashed and set aside.

6. Shri Khandare, learned Additional Government Pleader does not dispute the factual aspect that notification under Section 4 was issued on 30.9.1993 and thereafter, declaration under Section 6 of the Act. (notification under Section 6) was published in Government Gazette on 12.1.1995. There appears to be local publication as per panchanama dated 19.3.1995. The declaration under Section 6 needs to be published by three modes (i) in Official Gazette: (ii) publication in two daily newspapers circulating in the locality in which the land is situated; and (iii) local declaration at convenient places in the locality. In the present case, as admitted by learned Additional Government Pleader, the notification under Section 6 does not appear to have been published in daily newspapers as contemplated under Sub-section (2) of Section 6 of the Act. So there is no valid publication of notification under Section 6 as required under the Act. The ratio laid down by the Apex Court In the case of Bihar State Housing Board v. State of Bihar and Ors. is patently clear that the notification needs to be published by three modes and there is no option left with any one to give up or waive any one or other of the modes as contemplated in Sub-section (2) of Section 6 of the Act. In the present case, there is no valid declaration or notification under Section 6 as per mandatory requirement.

7. As admitted by the Additional Government Pleader by purshis Exh. 'D' till this date final award has not been published. This petition was presented in this Court on 10.1.1995. The notification under Section 6 was published in Government Gazette dated 12.1.1995. This Court granted ad interim relief and stayed further proceedings by order elated 31.3.1998. The order of this Court is in operation since 31.3.1998. Before 31.3.1998 there was no stay from any competent Court, so in this case, there is no question of exclusion of any period while computing the statutory period. As such it was obligatory on the part of the Land Acquisition Officer to publish award under Section 11-A of the Act within a period of two years from the date of final declaration under Section 6. Since no award has been declared within the prescribed period acquisition proceedings will have to be treated as lapsed.

8. Apart from the above, even declaration under Section 6 of the Act is not valid. Admittedly, notification under Section 4 of the Act was issued on 30.9.1993 and notification under Section 6 of the Act was published on 12.1.1995. The acquisition in the present case is under Land Acquisition Act of 1894. It is mandatory on the part of acquiring body or Government or the competent authority to publish the declaration under Section 6 before expiry of one year from the date of publication of notification under Section 4 of the Act. The notification under Section 6 dated 12.1.1995 is not within one year from the date of notification under Section 4 published on 30.9.1993. The same not being published within one year as required under proviso (II) of Sub-section (2) of Section 6 is bad and needs to be quashed and set aside. The same is also not validly published as contemplated under Sub-section (2) of Section 6 of the Act. So on both the counts, notification under Section 6 of the Act is liable to be quashed and set aside and for want of award within the prescribed time provided under Section 11-A of the Act. the land acquisition proceedings cannot be survive. The same are declared as lapsed.

9. In view of the above factual aspects and the legal position, in our opinion, notification under Section 6 issued by the respondents and consequent land acquisition proceedings are liable to be quashed and set aside by allowing the present petition.

10. In the result, Petition is allowed.

11. The land acquisition proceedings No. 1994/SSK/1/LNQ/CR/418 dated 12.1.1995 in relation to petitioner's agricultural lands as well as notification under Section 6 dated 12/1/1995 are quashed and set aside.

Rule made absolute in above terms with no order as to costs.