International Airports ... vs Akhil Sibal
1996 Latest Caselaw 214 Del

JUDGMENT

M. Jagannadha Rao, C.J.

(1) These four Letters Patent Appeals arise out of same land acquisition proceedings and can be disposed of together. In all these appeals, the appellant is the International Airport Authority of India (hereinafter called the Airport Authority). The appeals are directed against the Judgment of the learned Single Judge allowing the writ petitions Filed in 1987 and quashing the declaration made under Section 6(1) of the Land Acquisition Act (hereinafter called the Act) as being violative of Section 17(4) of the Act. The learned Single Judge,however, observed that it would be open to the appropriate Government to proceed with the acquisition after issuing a fresh declaration under Section 6 of the Act "in accordance with law".

(2) After the writ petitions were so disposed of by the Judgment dated 20.5.1994, the Government issued a fresh declaration under Section 6 on 19.5.1995 and the said notification has been separately challenged in various writ petitions in C.W.P. 2947/95 and the batch. In this Judgment we are dealing with the LPAs. We shall take up the fresh batch of writ petitions of 1995 separately.

(3) For convenience, we take Lpa 45/94 which is filed by the Airport Authority, against the Judgment in C.W. 2740/87.

(4) The facts of the case are as follows. The Lt. Governor of Delhi acquired a large area of 713 Bighas and 2 Biswas of land, including the land in dispute in this Lpa, situate in the revenue estate of Malikpur Kohi alias Rangpuri for the purpose of the Airport Authority under the provisions of the Land Acquisition Act,1894. The land was to be used for early and urgent development for re-settlement and rehabilitation of nearly 1000 families residing in the Abadi of Village Nangal Dewat which falls within the area of the Indira Gandhi International Airport Authority and which had to be cleared for reasons of safety and security of the Airport.

(5) We shall refer to the dates of the Section 4 notification and Section 6 declaration and it will be noticed that for each type of publication there is a gap of atleast one day between the Section 4 notification and Section 6 declaration.

(6) The notification under Section 4(1) of the Act is dated 23.12.1986 while the Section 6 declaration is dated 24.12.1986. The Section 4(1) notification was published in, the Official Gazette on 28.1.1987 (according to the writ petition the Gazette was available only on 30.1.1987 for sale), while the Section 6(1) declaration was published in the Official Gazette on the following day i.e. 29.1.1987. Section 4(1) notification was published in the newspaper on 3.1.1987, while Section 6 declaration was published in the newspaper on 5.1.1987. Similarly, the substance of the Section 4(1) notification was published in the locality on 23.12.1986, while Section 6 declaration was published in the locality on 24.12.1986. It is also important to note that notification under Section 4(1) mentions that the inquiry under Section 5-A is dispensed with by applying the provisions of Section 17(1). . The award of the Collector was made on 23.12.1987. It is the case of the appellant that on 29.1.1987 the Collector delivered possession of the entire 712 Bighas and 13 Biswas including the land which is the subject matter of these appeals to the the Airport Authority in accordance with Section 17(1).

(7) It is to be noted that earlier, a batch of writ petitions filed by some other persons questioning the land acquisition proceedings was dismissed in C.W. 342/90 etc. dated 28.5.1991. It is the case of the appellant, Airport Authority that apprehending that the present writ petition C.W. 2740/87 (out of which this appeal arises) will also be dismissed following the above said Judgment dated 28.5.1991, the respondent- writ petitioner amended the writ petition on the basis of a letter dated 16.3.1992 addressed by the Assistant Controller of Publications,Civil Lines, Delhi to one of the petitioners in response to the latter's query dated 11.3.1992 that the Official Gazettes containing the notification under Section 4(1) and the Section 6 declaration-were made available for public sale on 5.2.1987. Again later it was brought to light by correspondence that Gazettes containing the Section 4(1) notification and Section 6 declaration were available on 30.1,1987. It was also contended that the file shows that the Section 4(1) notification and Section 6 declaration were signed by the Lt. Governor on 12.12.1986. These facts were stated for raising a contention that there was simultaneous publication either on 30.1.1987 or on 12.12.1986.

(8) The learned Single Judge after allowing the amendment, in the manner referred to above, held that the declaration under Section 6 had been made well before the "date of publication of notification under Section 4(1)" as stated in Section 6(2) and was,therefore, violative of Section 17(4) of the Act, and liable to be struck down.

(9) The learned Single Judge also held that making of a declaration under Section 6(1) under the signatures of the Secretary to the Government or the duly authorised officer on 24.12.1986 was different from the "date of publication of the declaration" under Section 6(2). Whereas for the purpose of notification under Section 4(1) the date of publication was to be taken into account, the position,according to the learned Judge, was different so far as the "making" of a declaration under Section 6(1) was concerned. The learned Judge held that even assuming that the declaration under Section 6(1) was made at the latest on 24.12.1987 that was a date prior in point of time to the last of the dates of publication of the Section 4(1) notification which is deemed to be the "date of publication of Section 4(1) notification", and hence Section 17(4) was violated. The fact that the declaration was published in the daily newspaper or Official Gazette or in the locality, on a date next to the corresponding mode of publication of the Section 4(1) notification was of no consequence. The declaration under Section 6 was made on 24,12.1986 the dale when the Secretary or the authorised officer signed the same. For purposes of Section 17(4), the date of publication of declaration under Section 6(2) was irrelevant. Section 17(4) of the Act referred to the "making" of declaration and not to a declaration published. The words "making a declaration" in Section 17(4) were introduced by way of an amendment and should be given effect to. It was not permissible to read the words "publication of a declaration" into Section 17(4) as that would amount to re-drafting of the Section. In other words, the learned Judge,therefore, held that the making of a declaration under Section 6(1) in the present case was on 24.12.1986 and was anterior to the date of publication of the notification issued under Section 4(1) and this was violative of Section 17(4) of the Act.

(10) On the question of locus standi of the writ petitioners, the learned Judge observed that the writ petitioners were recorded as owner as appeared from Form Iv of the year 1985-86, a copy of which was on record in the file. Therefore, the writ petitioners had locus standi. The other objection relating to the petitioners filing the joint petition was also rejected. In the result, the Section 6 notification was quashed, leaving it open to the Government to proceed with the acquisition after issuing a fresh Section 6 notification "in accordance with law".

(11) A preliminary objection was raised by the respondents (writ petitioners) that the acquisition having been made by the Government (no doubt, for the benefit of the Airport Authority), the Letters Patent Appeal by the Airport Authority was not maintainable. (There was no appeal by the Government.) Reliance was placed by the respondents for this purpose on a Division Bench Judgment of this Court in Delhi Development Authority vs. M/s Golcha Theatres . In that case, while holding that the Letters Patent Appeal at the instance of D.D.A. was not maintainable, the Bench relied only on Ealing Corporation vs. Jones (1959(1) Qbd 384).

(12) But, in our opinion, this view of the Bench is quite contrary to the direct rulings of the Supreme Court in eight Judgments : Himalayan Tiles and Marble (P) Ltd vs. -Francis Victor Coutinho (Dead) by L.Rs , and another vs. State of Karnataka and others ; Krishi Upaj Mandi Samiti vs. Ashok Singhal and others ; Food Corporation of lndia,Faridkot,Punjab vs. Makhan Singh ; Union of India vs. Sher Singh and others ; Union of India and another vs. District Judge, Udhampur and others ; N. Krisahnamachari vs. Managing Director,APSRTC, Hyderabad and others and Bihar State Electricity Board vs. State of Bihar and others (1994 Supple (3) S.C.C. 743). In all these cases, it was held that the beneficiary of land acquisition could question the compensation under Section 18 or could file appeals to the High Court under Section 54 or could question adverse decision taken in writ jurisdiction by filing an appeal or could get imp leaded. We have no hesitation to reject the preliminary objection. We hold that M/s Golcha Theatres case must be deemed to have been impliedly overruled by the Supreme Court.

(13) Before we discuss the main point raised by the writ petitioners, we have to state that the writ petitioners contended that the date of publication of any Gazette is to be deemed to be the date of availability of the Gazette for sale. This contention is not correct in view of the Judgment of the Supreme Court in Pankaj Jain Agencies vs. Union of India . This contention is rejected accordingly.

(14) On the main contention arising under Sections 6 and 17(4) of the Act, we shall discuss the statutory provisions and then the relevant case law.

(15) The change in the law brought about by the Amendment Act (68 of 1994) in Sections 4 and 6 of the Land Acquisition Act, by Act 68 of 1984 are now well-known. More than one method of publication of the notification under Section 4(1) and of the publication of the declaration under Section 6(1) have been specified. In view of the different methods of publication, it was also stated that the last of the dates of publication or public notice would be treated as the "date of publication of the notification under Section 4(1)". Similarly the last of the dates of publication of the declaration under Section 6(1) or public notice thereof would be treated as the "date of publication of the declaration under Section 6(1)". Section 17(4) upon which the Judgment of the learned Single Judge is based requires that the declaration under Section 6 is to be made at any time after the last of the publications of the notification.

(16) Under Section 4(1) the learned Judge was of the view that the declaration was to be made after the last of the dates of publication of the notification under Section 4(1). Here the declaration under Section 6 was made on 24,12.1986 under signature of the Secretary well in advance of the last of the Section 4(1 notification dated 28.1.1987 and therefore, the Section 6(1) declaration was held invalid. It was observed that it was not permissible to take into account the last of the notifications containing the Section 6 declaration, i.e. 29.1.1987. That was the line of reasoning of the learned Single Judge.

(17) A contention was raised that the Lt. Governor signed the file relating to Section 6 declaration on 12.12.1986 and that is also the date on which Section 4(1) notification was signed has to be rejected at the outset. The mere signing in the office note is of no effect in law. It must be expressed in the manner required to be expressed or signed and published in the manner required to be published. It is to be noted that the Section 4(1) notification in this case was expressed in the form on 23.12.1986 while the Section 6(1) declaration was expressed and signed in the manner set out in Section 6(1) on 24.12.1986. Hence, these dates are the dates relevant and not 12.12.1986. Provisions in Article 74 or Article 166 of the Constitution of India, have been construed as creating rights/liabilities only after notice or publication. The executive order of the Government merely signed by a Secretary and kept in his pocket or in his office does not create any rights or liabilities. Firstly, it has to be expressed in the form provided therein and even then, it can create rights or liabilities only if communicated to parties directly or if it is published in a manner which can help affected persons to obtain knowledge thereof. (See Dattatraya Moreshwar vs. The State of Bombay and others (1952 S.C. 181); and Bacchittar Singh vs. State of Punjab & another . In the latter ruling , it was stated by the Constitution Bench that before something amounts to an order of the State Government, two things are necessary. The order has to be expressed in the name of the Governor as required by clause (1) of Article 166, and then it must becommunicated. Lest different opinions are not expressed on the same question, it is stated that the opinion can become a decision of the Government only when it is communicated to the person concerned. It is of the essence of the order that it is communicated to the person communicated who would be affected by the order. Likewise Section 6(1) prescribes the manner in which the declaration under Section 6(1) is to be made and expressed but mere making of it or expressing it does not create rights or liabilities for purposes of Section 6(1) and it is required to be published. Hence 12.12.1986 cannot be treated as the date of the notification under Section 4(1) of the declaration. The correct dates are 23.12.1986 for the Section 4(1) notification and 24.12.1986 for the declaration made under Section 6(1). We shall next deal with the contention arising under Section 17(4) read with Section 6(1) of the Act.

(18) It is, at the outset, necessary to refer to Section 6 with all its sub-clauses :- "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, subsection (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 authorized to certify its orders, and different declarations may be made from lime to lime 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, 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) 0rdinance,1967 (I 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 revenue or some fund controlled or managed by a local authority. Explanation 1. In computing any of the periods referred to in the first proviso, the period during which any action or proceedings to be taken in pursuance of the notification issued under Section 4, sub-section (1), 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 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."

(19) It will be seen that sub-clause (1) speaks of declaration being made under the signature of a Secretary to Government or of some officer duly authorised to certify "orders" and the clause (ii) of the first proviso says "no declaration .... published" after the commencement of the 1984 amendment shall be made after the expiry of three years from the date of publication of the notification. The second proviso says that no such declaration shall be made unless the compensation to be awarded for such property is to be paid by the company or from public revenue, can it be said that for purposes of sub-clause (1) of Section 6, it is sufficient to go by the mere date on which the declaration is signed by the Secretary or authorised officer or is it necessary that it should have been also "published" ? What is the significance of the words "made" in sub- clause (1) of Section 6 and also the word "published" used in the first proviso, in both the paras (i) and (ii) ?

(20) We shall initially refer to the significance of the word "hereinafter" used in Section 6(2). In a situation where the last of the notifications under Section 6 is beyond 3 years or I year (as the case may be) from the last of the notifications published under Section 4(1), but where the signing of the declaration under Section 6(1) is within 3 years or I year (as the case may be) from the last of the notifications under Section 4(1), Courts have held that the time limitations in the first proviso are not violated. (See for example, Executive Officer, T.T.D. vs N.S. Venugopal (1991 (3)A.L.T. 427) to which one of us (the Chief Justice) was a party. In that case, it was pointed out that for the purpose of the first proviso to sub-clause (1) of Section 6, the deeming provision in sub-clause (2) of Section 6 is not attracted inasmuch as the deeming provision in sub-clause (2) of Section 6 is to be applied "hereinafter", that is, in respect of the provisions coming after sub-clause (2) of Section 6. On that basis, the declarations under Section 6(1) signed within 3 years or I year (as the case may be) from the last of the Section 4(1) notifications have been upheld, even though the last of the Section 6(1) declarations may be beyond 3 years or I year (as the case may be) from the last of the Section 4(1) notifications.

(21) The same question arose before the Supreme Court recently in Krishi Utpadan Mandi Samiti vs. Makrand Singh . In that case too, as in the Andhra Pradesh Judgment above referred to, it was held that the word "hereinafter" mentioned in sub- clause (2) of Section 6 is not attracted to. sub-clause (1) of Section 6. To that extent, the Andhra Pradesh Judgment is obviously correct.

(22) But the Supreme Court had occasion to deal with a finer aspect relevant to the case before us. The Court had occasion to explain sub-clause (1) of Section 6. It was held that for purposes of the said sub-clause the "making" of the declaration and the "publication" thereof as mentioned in the First proviso are both important. Their Lordships have pointed out that the first proviso uses the word "published" and, the said word must mean publication in the Gazette. It is necessary to examine the Supreme Court Judgment in greater detail.

(23) In that case before the Supreme Court, the facts were as follows. The declaration under Section 4(1) was published in the Gazette on 19.2.1982 (This was before the 1984 amendment and 19.2.1982 was treated as the date of notification of Section 4(1) for purposes of the first proviso to sub-clause (1) of Section 6). The declaration under sub-clause (1) of Section 6 was published in the Gazette on 7.2.1987 and (as per the Amending Act of 1984) the declaration was also published in newspapers on 4.6.1987, and the substance in the locality subsequent thereto. If we go by the last of the dates -" of the notifications or public notice of Section 6(1) declaration - as per the deeming provision in sub-clause (2) of Section 6 -, the declaration is beyond 3 years from the Section 4 (1) notification. But their Lordships held that having regard to the word "hereinafter" used in sub-clause (2) of Section 6, the deeming provision therein did not apply. Therefore, one need not go by the subsequent public notice of the substance of the declaration which is referred to in Section 6(2). In that context, their Lordships construed sub-clause (1) of Section 6 and emphasised that the word "published" used in the first proviso to sub- clause (1) of Section 6 cannot be lost sight of, and it must be interpreted as publication in the Gazette. At the stage of Section 6(1) the modes other than Gazette referred to in Section 6(2) were irrelevant because they become relevant only "hereinafter" i.e. after Section 6(2) stage.

(24) For the purposes of the present case, we are emphasising the following observations in para 5 of the above Judgment of the Supreme Court: "5.Clause (i) of the proviso to Section 6(1) mandates the publication of the declaration in the Official Gazette and it should be within three years from the date of the publication of the notification under Section 4(1) i.e. the last of the dates referred to in Section 4(1). The word "publish" emphasises the act accomplished i.e. declaration under Section 6(1) being published in the official Gazette. The last date under Section 6(2) shall be the date for the purposes "hereinafter referred to" would be not for computing the period of three years prescribed in clause (i) of proviso to Section 6(1) of the Act as it was already done, but purposes to be followed hereinafter. Otherwise language would have been "hereinbefore done". Sub-section (2) as such did not prescribe any limitation within which the declaration under Section 6(1) or other steps hereinafter to be taken, in other words, the steps to be taken thereafter in making the award under Section Ii or in computation of the period prescribed in Section II- A. The publication of the declaration in two daily newspapers having circulation in the locality one of which is in the regional language and the publication of the substance of the declaration in the locality are ministerial acts and is a procedural part. It appears that these publications are required to be done to make the declaration published in the manner, to be conclusive evidence of the public purpose under Section 6(1) and also to provide limitation to make the award under Section 11 by the Collector. In other words, the limitation prescribed under Section 11-A is for the purpose of making the award and if the Collector fails to do so, the entire proceedings under Sections 4(1) and 6(1) shall stand lapsed. If this consistent policy of the Act is understood giving teeth to the operational efficacy to the scheme of the Act and public purpose the Act seeks to serve, we are of the considered view that publication in the Official Gazette already made under clause (i) of provisio to sub-section (1) of Section 6 is complete, as soon as the declaration under Section 6(1) was published in the Official Gazette. That will be the date for the purpose of computation of three years' period from the last of the dates of the publication of the notification under Section 4(1). The procedural ministerial acts prescribed under sub-section (2) are only for the purpose of the procedure to be followed "hereinafter", in other words, the steps to be taken subsequent to the publication of the declaration under Section 6(1) of the Act. We cannot agree with Shri Rana, learned Senior Counsel, that the date of making the declaration by the Secretary to the Government or the authorised officer is the date for computing period of three years. Equally, we cannot agree with the learned counsel for the respondents, Shri Upadhyay, that publication of the substance being the last date from which the period of three years needs to be computed. Acceptance of either contention would easily defeat the public policy under the Act by skilful manner of management with the lower level officials. The High Court,therefore, was not right in its conclusion that since the declaration was published in the newspapers on 4.6.1987, after the expiry of three years, the declaration under Section 6(1) and the notification under Section 4(1) stood lapsed. It is clearly illegal. The further contention of the learned counsel for the respondent that other contention raised in the writ petitions needs to be dealt with and so the cases need to be remanded, has no force for the reason that though they were pleaded but the parties have chosen to argue only the above contention. So it is not a fit case for remand. The writ petitions would stand dismissed. The appeals are accordingly allowed but in the circumstances without costs."

(25) In other words, it is quite legitimate to ignore the provisions of sub-clause (2) of Section 6 at the Section 6(1) stage. Their Lordships pointed out that the word "published" in sub-clause (1) of Section 6 is important and refers to publication in the Gazette, and that the other modes in Section 6(2) are ministerial in nature and are not relevant for purposes of Section 6(1). The Supreme Court in the above case, i.e. Krishi Utpadan Mandi Samiti vs. Makrand Singh and others has, therefore, held that "Clause (i) of the proviso to Section 6(1) mandates the publication of the declaration in the Official Gazette". It also clearly observed again, "The publication of the declaration in two daily newspapers having circulation in the locality one of which is in the regional language and the publication of the substance of the declaration in the locality are ministerial acts and is a procedural part". Their Lordships also observed that "the publication in the Official Gazette already made under clause (i) of proviso to sub-section (1) of Section 6 is complete, as soon as the declaration under Section 6(1) was published in the Official Gazette. Their Lordships pointed out significantly:- "We cannot agree with Shri Rana (Counsel for appellant) the learned Senior Counsel, that the date of making the declaration by the Secretary to the Government or the authorised officer is .the date of computing the period of three years. Equally we cannot agree with the learned counsel for the respondents Shri Upadhyay, that publication of the substance being the last date from which the period of three years needs to be computed. Acceptance of either contention would easily defeat the public policy under the Act by skilful manner of management with the lower level officials."

(26) Therefore, for purposes of Section 6(1), we have to go by the Gazette publication of the declaration only.

(27) Another Judgment of the Supreme Court reported in State of Haryana vs. Raghubir Dayal is also important in this context. In that case, the substance of the declaration made under Section 6(1) was not at all published in the locality. It was held that while such a local publication was mandatory for purposes of Section 4(1), the publication of the substance of the declaration in the locality was purely directory. This case also supports the view that the modes of publication of the declaration in newspapers or in the locality are purely ministerial and directory and it is the declaration published in the Gazette that is relevant for purposes of Section 6(1).

(28) The above decisions coupled with Bacchittar Singh vs. State of Punjab & another make it clear that making of the declaration under Section 6(1) and keeping it in one's pocket or on official desk does not create any legal rights or obligations. It is the communication or official publication of the same that creates rights. The word "published" in Section 6(1) is referrable to publication in Official Gazette. The publication in newspapers and locality as stated in Section 6(2) arc for purposes "hereinafter" i.e. after Section 6(2) and not for purposes of Section 6(1). In fact, even the newspaper and local publication in Section 6(2) are purely ministerial acts and are not the essence of the making and publication of the Section 6(1) declaration. While dealing with Section 6(1) one has to ignore Section 6(2) modes of publication and take into account only the Gazette publication of the declaration. There cannot be one date as the date of declaration under the main part of Section 6(1) and another date for purposes of the proviso to Section 6(1). Of course, the date for purposes after Section 6(2) may be different than the date of Gazette publication of the declaration.

(29) It is in this background that we have to construe the provisions of Section 17(4). That section reads as follows:-    "SECTION 17(4): In the case of any land to which, in the opinion of the appropriate Government, the provisions of sub-section (1) or sub-section (2) are applicable, the appropriate Government may direct that the provisions of Section 5-A shall not apply, and if it does so direct, a declaration may be made under Section 6 in respect of the land at any time after the date of publication of the notification under Section 4, sub-section (1)".  

(30) In our view, the above provision merely states that the declaration as to public purpose in Section 6 is to be made only "after" the "publication of the notification under Section 4(l)",namely, the last of three modes of publication under Section 4(1). What is the meaning of the words "a declaration may be made" used in Section 17(4)   

(31) Does it mean merely the signing of the declaration by the Secretary or authorised officer as stated in Section 6(1) In our view, no. We have already stated that the mere signing of the declaration without its being expressed in the form required or even if it is in the form required, the mere signing in the format, cannot create any right or liabilities. Such rights and liabilities cannot arise by mere signing and keeping in one's pocket or on the table. It must be officially communicated or "published" as stated in the first proviso to Section 6(1), i.e. published in the Gazette as held in Krishi Utpadan Mandi Samiti's case . Therefore, the words "declaration may be made under Section 6" used in Section 17(4) must mean a declaration which is effective and creates rights or obligations, and such a situation arises only when, as stated above, the declaration is published in the "Official Gazette", as stated by the Supreme Court.

(32) Applying the above legal principles to the facts of the present case, the last of the Section 4(1) notification is dated 28.1.1987 (being the one published in Gazette) while so far as the declaration under Section 6(1) is concerned, we have to go by the Gazette publication only which was on 29.1.1987. This clearly satisfies the requirement of Section 17(4),namely, that there is to be a gap of atleast one day between the last of the Section 4(1) notification and the "declaration" that is made under Section 6(1).

(33) The learned counsel for the respondents(writ petitioners) and the learned Single Judge have relied upon the Judgment of the Supreme Court in State of Uttar Pradesh vs. Radhey Shyam . What happened in Radhey Shyam's case was, the notification under Section 4(1) was issued on 6.5.1987 invoking Section 17(4) as well. The notification concerning the declaration under Section 6(1) was also issued simultaneously, the Gazette publications of these two notifications were also made on the one and the same day i.e. 22.5.1985. All that was laid down by the Supreme Court was that the simultaneous issue as well as publication of the notification under Section 4(1) and of the declaration under Section 6(1) was bad. It is true, as pointed out by the learned Single Judge, that not only the publication of Section 6(1) notification in the Gazette on 22.5.1985 but also the very declaration made under Section 6(1) were quashed by the High Court and the Supreme Court affirmed the same. But, what is important for the purposes of the case before us, is that in Radhey Shyam's case, the Court had nowhere laid down that for purposes of Section 17(4), the use of the words "declaration under Section 6" meant the mere signing of the declaration by the Secretary or authorised officer. That case does not lay down any such proposition.

(34) Reliance for the respondents-writ petitioners was placed upon certain decisions of the Delhi High Court. In Uday Kaushish vs. The L-A.O. ; the notification under Section 4(1) was published in the Gazette and later in two newspapers on 28.2.1986 and 1.3.1986 respectively. Section 17(4) was invoked. The declaration under Section 6 was "issued" on 12.2.1986. It is not clear when the declaration so issued was "published" in Gazette as per first proviso to Section 6(1) and as per Krishi Utpadan "Samiti's case. If the Gazette publication of Section 6 declaration was to be presumed to be dated 12.2.1986, i.e. anterior to 1.3.1986, then it was violative of Section 17(4). The Judgment is,therefore,in accord with the view now expressed by the Supreme Court in Krishi Utpadan Samiti's case. It does not come in our way. Coming to Uday Kaushish vs. The L.A.O (AIR 1988 Delhi 101 (DB), there the Section 4(1) notification is dated 10.11.1986, was published in the Gazette on 10.11.1986 and in the two newspapers on 21.11.1986 and 20.12.1986 respectively. Section 17(4) was invoked. The declaration was dated 11.11.1986 and was gazetted on 11.11.1986. It is not clear when the declaration was published in the newspapers or in the locality. Going by Krishi Utpadan Samiti's case, the Judgment is correct because the declaration under Section 6(1) was in the Gazette on 11.11.1986 was anterior to the last of the Section 4(1) publications i.e. 20.12.1986. It was violative of Section 17(4). Decision in Siva Apparel's case (35 (1988) D.L.T. 31 (DB) merely follows the Uday Kaushish's case (AIR 1988 Delhi 101).

(35) Thus, the three Delhi Judgments can be said to accord with the Supreme Court Judgment in Krishi Utpadan Samiti's case inasmuch as the Section 6(1) declaration in the Gazette is in itself anterior to the last of the Section 4(1) notifications. In the present case before us, the factual position is different. Here the Section 6(1) declaration is published in Gazette on 29.1.1987, while the last of the Section 4(1) notifications is dated 28.1.1987 and hence Section 17(4) is not violated. The Delhi Judgments,therefore, do not come in our way. The view we have taken and the Delhi Judgments are consistent with-the Supreme Court Judgment in Krishi Utpadan Samiti's case.

(36) We accordingly hold that the Section 6 declaration published in the Gazette on 29.1.1987 is valid and does not offend Section 17(4).

(37) Other elaborate submissions made by the learned counsel for the appellant need not.therefore, be considered. It was argued that possession was taken over by the appellant and,therefore, title, free of all encumbrances had vested in the appellant. It was argued that writ petitioners had no title, they were speculators and middlemen and had no legal rights. It was contended that the Society might have a right to sue, but not the writ. petitioners. These and other contentions raised before us need not be gone into in the view we have taken about Section 6(1) and Section 17(4).

(38) A curious argument was advanced before us by the respondent-writ petitioner that inasmuch as a fresh Section 6 declaration was issued on 19.5.1995 in super session of the earlier declaration published in Delhi Gazette on 24.12.1986, there was no need to go into validity of the declaration published on 24.12.1986.

(39) There are several answers to this contention. We may state that in the Judgment under appeal dated 20.5.1994, the learned Single Judge while "quashing" the Section 6(1) declaration held:    "ITis,however, open to the appropriate Government to proceed with acquisition after issuing fresh declaration under Section 6 of the Land Acquisition Act in accordance with law"  

(40) Obviously, it was pursuant to these observations that the fresh declaration is issued. ln Radhey Shyam's case , the Supreme Court, while quashing Section 6 declaration as violative of Section 17(4) gave a similar direction. It said:    "ITwill,however, be open to the appellants to issue a fresh declaration under Section 6, if so advised, within the period contemplated in the proviso to Section 6(1) of the Act read with the explanation."  

(41) The learned Single Judge,after quashing the declaration under Section 6(1) was,therefore, right in permitting fresh declaration to be issued "in accordance with law", Learned counsel for the respondents-writ petitioners,however, relied on Oxford English School VS. Government of Tamil Nadu & others . There the Supreme Court observed that the High Court could not give directions to issue fresh Section 6 declaration, if the time prescribed in the proviso to Section 6(1) would expire by the date of any such fresh declaration. That Judgment does not affect what was stated by the Supreme Court in Radhey Shyam's case nor does it affect the direction given in this case that a fresh declaration could be issued "in accordance with law".

(42) Now, coming to this contention of the respondents- writ petitioners, it is to be seen that if the Judgment is right in quashing the Section 6 declaration of 24.12.1986, then the word "super session" used in the new notification dated 19.5.1995 has no meaning. The Government could not have superceded a declaration which was already quashed. Unless the Judgment is set aside and the original declaration under Section 6(1) dated 24.12.1986 gets revived, there is no occasion for superceding the declaration dated 24.12.1986. The word "super session" in the fresh declaration dated 19.5.1995 is,therefore, otiose, unmeaning and can create no rights or obligations. Alternatively, if the super session was based on the Judgment, the super session itself being consequential to the Judgment, must necessarily fall with the setting aside of the Judgment to the extent the Judgment quashed the Section 6(1) declaration dated 24.12.1986. Therefore, there is absolutely no merit in the contention that the 24.12,1986 declaration has been superceded.

(43) In the result, we set aside the Judgment of the learned Single Judge in which the Section 6(1) declaration dated 24.12.1986 was quashed. The said declaration dated 24.12,1986 is valid as it is published in the Gazette one day after the last of the Section 4(1) notifications (i.e. on 23.12.1986), and there is, therefore, no violation of Section 17(4). The super session of the Section 6(1) declaration on 19.5.1995 is declared to be otiose and of no effect.

(44) Appeals are allowed and the Judgment of the learned Single Judge is set aside and writ petitions out of which the appeals arise are dismissed, but without costs.