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PETITIONER:

EUGENIO MISQUITA & ORS.

Vs.

RESPONDENT:

STATE OF GOA & ORS.

DATE OF JUDGMENT: 29/09/1997

BENCH:

A.S. ANAND, K. VENKATASWAMI

ACT:

HEADNOTE:

JUDGMENT:

J U D G M E N T

K. Venkataswami. J.

Though before the High Court of Bombay. Panaji Bench

(Goa) three questions were raised and answered, before us

learned counsel for the appellants confined the argument to

one of the questions raised before the High Court, namely,

whether the declaration made/published under the Land

Acquisition Act, 1894 (hereinafter called the `Act') was

barred by limitation.

To appreciate the above question, certain dates are

necessary. Initially a Notification under Section 4(1) of

the Act for acquiring land for construction and black

topping of St. Sebastian Chapel Road was published on

8.11.90. That Notification lapsed as no declaration as

required under Section 6 of the Act as amended by Act 68 of

1984 was made. Therefore, a fresh Notification was made

under Section 4(1) of the Act for the same purpose on

23.6.92. The said Notification under Section 4(1) was first

published in the English daily "O Heraldo" on 29.6.92, and

in the Marathi daily "Nav Prabha" on 2.7.92. Public Notice

in the locality of the Notification was given on 8.7.92 as

required under Section 4 of the Act. Lastly, it was

published in the Official Gazette of the Goa Government on

6.8.;92. Immediately the validity of the said Notification

was challenged in Writ Petition No.436/92 as "urgency

provision" under Section 17(4) of the Act was also invoked.

The High Court allowed the Writ Petition on 25.11.92 by

directing the appellants ( writ petitioners before High

Court) to file their objections under Section 5A on or

before 4.12.92 and directing the respondents to decide the

said objections on or before 18.12.92 after hearing the

aggrieved parties. After complying with the directions of

the High Court, a declaration under Section 6 of the Act was

made on 3.8.93 and it was published in the Official Gazette

on 5.8.93. The same declaration was published in Marathi

daily "Gomantak" on 6.8.93 and in the English daily "Navhind

Times" on 7.8.93 respectively. Public Notice of the

declaration was given in the locality on 28.8.93. Under

these circumstances, the appellants challenged the validity

of the declaration under Section 6 on the ground that the

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publication of the declaration was beyond one year taking

28.8.93 as the date of publication and, therefore, the

acquisition proceedings had lapsed.

The contention advanced on behalf of the appellants

before the High Court was that on a correct understanding

and interpretation of Section 6(1) & (2), of the Act, the

declaration must be taken to have been made/published for

the purpose of proviso to Section 6(a)(ii) on the date on

which the last in the series of publications under Section

6(2) was published. In this case, it was in 28.8.93. If so

understood on the facts of this case, according to the

appellants, the declaration having been published in the

locality on 28.8.93 it was beyond one year prescribed under

proviso to Section 6(1)(ii) of the Act. Therefore, that

declaration was barred by limitation. On the other hand, it

was contended before the High Court on behalf of the

authorities that under Section 6(1) the relevant date for

the purpose of limitation was the date on which the

declaration was made and that declaration having been made

on 3.8.93 was well within one year from the date of

Notification published under Section 4(1), namely, on

6.8.92. The High Court in the light of the earlier Division

Bench judgment of the same Court held as followed:-

"Applying the ratio of these two

decisions, it is clear that Section

4 Notification was published in

Government Gazette on 6th August

1992 and in fact that was the last

of such publications. 3rd August

1993 and it is common ground that

it was published in the Government

Gazette on 5th August 1993. It is,

therefore, clear that regard being

had to the date of making of the

declaration under Section 6, which

is 3rd August 1993, it falls within

the limitation prescribed and,

therefore, it cannot be held that

the publication of the declaration

is outside the limitation

prescribed under the Act."

Mr. Dhruv Mehta, learned counsel for the appellants,

elaborately argued the matter bringing to our notice several

judgments of the High Court and of this Court both for and

against the appellants. In short, the argument of learned

counsel for the appellants was that having regard to the

language employed in sub-section (2) of Section 6 of the

Act, the last in the series of publication must be taken as

the last in the series of publication must be taken as the

date of publication for calculating the limitation

prescribed under proviso to Section 6(1)(ii) of the Act.

According to learned counsel, the purpose of introducing the

limitation of one year by Act 68 of 1984 was to make the

officials concerned to speed up the proceedings and to avoid

the delay. This object, according to him, cannot be achieved

unless the construction of Section 6 as advanced by him is

accepted. He heavily placed reliance on a judgment on

Rajasthan High Court in Jagrup Singh Vs. State of Rajasthan

& Ors. _ AIR 1993 Rajasthan 157. He also brought to our

notice, in all fairness, a recent judgment of this Court

reported in Krishi Utpadan Mandi Samiti & Anr. Vs. Makrand

Singh & Ors. - (1995)2 SCC 497, which holds against the

contention now advanced by the learned counsel. He also

brought to our notice a decision of the Kerala High Court

which is also against the appellants.

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We would have dealt with the matter elaborately but for

the recent judgment of this Court in Krishi Mandi Samiti's

case (supra), which is directly on the point answering

identical contentions raised before this Court in the said

judgment.

Still, we would like to give our reasons in brief for

reaching the same conclusion.

Sections 4(1), 6(1) & (2) and Section 11-A read as

follows:-

"Section 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 6. Declaration that land

is required for a public purpose -

(1) Subject to the provision of

Part VII of this Act, when the

appropriate Government is

satisfied, after considering the

report, if any, made under Section

5-A, 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 authorized to

certify its order 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 (a), irrespectively of

whether one report of 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) Ordinance, 1967 (1 of

1967), but before the commencement

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of the Land Acquisition (Amendment)

Act, 1984, shall be made after the

expiry of three years from the date

of the publication; 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

company, or wholly or partly out of

public revenues 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 proceeding to

be taken in pursuance of the

notification issued under Section

4, sub-section (1), is stayed by an

order of a court small 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."

"Section 11-A - Period within which

an award shall be made -

The Collector shall make an award

under Section 11 within a period of

two years from the date of the

publication of the declaration and

if no award is made within that

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period, the entire proceedings for

the acquisition of the land shall

lapse:

Provided that in a case where the

said declaration has been published

before the commencement of the Land

Acquisition (Amendment) Act, 1984,

the award shall be made within a

period of two years from such

commencement.

Explanation - In computing the

period of two years referred to in

this section, the period during

which any action or proceeding to

be taken in pursuance of the said

declaration is stayed by an order

of a court shall be excluded."

It is now well settled that the last of the dates in

the series of the publications made under Section 4 (1) of

the Act is the relevant date to reckon the starting point of

limitation for the purpose of proviso to Section 6(1) (ii).

Now, the question is which is the relevant date to reckon

the last date for the purpose of proviso to Section (1)

(ii). In other words, whether the modes of publication

prescribed under Section 6(2) obviously for the purpose of

reckoning limitation under Section 11-A of the Act have any

part to play in the matter of computing the period

prescribed under proviso to Section 6(1)(ii).

According to the learned counsel, the limitation

prescribed under proviso to Section 6(1)(ii) has to be

construed with reverence to the different dates / modes of

publication prescribed under Section 6(2) of the Act. In

support of this submission, learned counsel refers to the

judgments of this Court rendered on Section 4(1) of the Act

holding that the last of the dates of such publication in

the series is the relevant date for computing the period of

limitation under proviso to Section 6(1) (ii).

Let us examine whether the learned counsel is right in

his submission. As seen from the above extracts of relevant

provisions, while Section 4(1) commands publication of

notification under that Section. Section 6 speaks of the

declaration being made to the effect that any particular

land is needed for public purpose or for a company. There

are judicial decisions that have interpreted the word `made'

to mean `published' for the reasons stated in those

decisions. Therefore, strictly speaking, but for those

decisions. Therefore, strictly speaking, but for those

judicial decisions the date of making of the declaration

under Section 6(1) will be the relevant date for reckoning

the period of limitation. However, in the interest of

general public, the courts have taken the view that the

declaration made will stand accomplished only when it is

published. This publication has, therefore, nothing to do

with the publication referred to in Section 6(2) of the Act

which is for a different purpose, inter alia, for reckoning

the limitation prescribed under Section 11-A of the Act.

This construction is supported by the language employed in

Section 6(2) of the Act. In particular, the word

"hereinafter" used in Section 6(2) will amply prove that the

last of the series of the publication referred to under

Section 6(2) is relevant for the purposes coming thereafter,

namely, for making award under Section 11-A. The language

employed in second proviso to Section 6 (1) also supports

this construction. Therefore, the contention of learned

counsel cannot be accepted.

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This is also the view taken by this Court in Krishi

Utpadan Mandi Samiti's case. The learned Judges framed the

question thus:-

"The question, therefore, is that

which date of the publications in

three steps i.e. publication in the

Gazette, two newspapers and local

publication to be the last date for

the purpose of computing three

years limitation prescribed in

clause (1) of the proviso to

Section 6(1) of the Act."

It may be noted that this Court in that case was

considering a case which arose before the coming into force

of the Amending Act 68 of 1984. The case on hand has arisen

after the Amending Act 68 of 1984. The case on hand has

arisen after the Amending Act 68 of 1984. The only

difference is the period of limitation: for the cases

arising before the Amending Act it was three years and one

year for the cases arising after the Amending Act.

Otherwise, the principle is the same. The learned Judges

after referring to the relevant provisions observed thus:-

"The question, therefore, is that

which date of the publications in

three steps i.e. publication in the

Gazette, two newspapers and local

publication to be the last date for

the purpose of computing three

years limitation prescribed in

Clause (i) of the proviso to

Section 6(1) of the Act. Prima

facie, it gives an impression that

the last of any of the three steps

puts in motion, the running of

limitation of three years.

...................................

.........................

So it is necessary to understand

the scheme and policy of the Act to

get the crux of the question.

...................................

.........................

It would be seen that the purpose

of notification under Section 4(1)

is an intimation to the owner or

person having an interest in the

land that Government exercised the

power of eminent domain in relation

to his land and for public purpose

his land is needed or likely to be

needed: puts an embargo on his

freedom to deal with the land as an

unencumbered land and also pegs the

price of the land prevailing as on

that date. It also is a caveat to

the Collector to make the award

under Section 11 as well as to

determine the market value

prevailing as on the last of the

dates to be the date and the award

should be made within a period

prescribed by Section 11-A, lest

the entire acquisition shall stand

lapsed. The word `hereinafter' is

for such purposes as well as for

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the purpose of determination of the

compensation under Chapter III of

the Act as well. Therefore, the

word hereinafter referred to as the

last date of the publication of the

notification is the date from which

the prevailing prices of the land

is to be computed etc."

...................................

...................................

...................................

...............

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) if 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 11 or in

computation of the period

prescribed in Section 11-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-

A is for the purpose of making the

award and if the Collector fails to

do so, the entire proceeds 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

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. That will be the date for

the purpose of computation of three

years period from the last of the

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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, the

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."

In Lt. K. Padmadas Vs. State of Kerala & Ors. - AIR

1992 Kerala 158, a Division Bench of the Kerala High Court

while answering an identical question held as follows:-

"In this view of the matter, the

last date of publication envisaged

by S.4(1) is 28.6.1989. Being so,

the order of the Board of Revenue

made on 30.4.90 and the declaration

under S.6 published in the gazette

on 29.5.1990 are within the period

prescribed by the first proviso to

sub-section (1) of S.6, namely, one

year from the date of publication

of the notification under S.4(1).

The question then arises whether

all the requirements of a valid

declaration as laid down in sub-

section (2) of S.6, namely

publication in two daily newspapers

and in the official gazette and the

giving of public notice in the

locality should be complied with

within the period prescribed in

sub-s. (7). It is stated that the

sub-section defines the date of

publication of the declaration as

the last of the dates of the

publication in the gazette and the

newspapers and the giving of public

notice and therefore unless all the

publications and the public notice

fall within the one year period,

the bar of the first provision to

S.6(1) operates. The publication in

the gazette was on 29.5.1990 and in

the Kerala Times and Mathrubhumi

dailies on 29.5.1990 and 4.6.1990

respectively. The counter-affidavit

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of the third respondent does not

disclose as to when public notice

was given in the locality.

We must even at the outset mention

that a plea in this form has not

been put forward at the earlier

stages. The contention before the

learned Single Judge (as evident

from paragraph 7 of his judgment)

was that the declaration under S.6

should have been made within one

year of the publication in the

newspapers. The respondents did not

therefore have any opportunity of

meeting the present case or of

placing before court the necessary

details regarding the public notice

of the declaration in the locality.

We need not however rest our

decision on this point as we are

even otherwise of the opinion that

the declaration under S.6 was in

time, in view of the publications

effected on 29.5.1990.

Sub-section (2) of S.6 reads:

"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."

It is evident from the parenthesis,

which is relevant, that any

reference in the subsequent

provisions of the Act, to the date

of publication of the declarations

is to be taken as the last of the

dates of publication and the giving

of public notice. The use of the

expression "hereinafter referred

to" makes it clear that the

definition of the last date of

publication is for the purpose of

the subsequent provisions of the

Act. It is not possible to project

it back for the purpose of sub-s.

(a). The High Court of Andhra

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Pradesh had taken the same view in

(1991) 2 Andh LT (Notes on Recent

Cases) page 41(2) between the

Executive Officer. T.T.D. Vs. N.S.

Venugopal (to which one of us, the

Chief Justice, was a party). We are

in agreement with this view. The

publication of the declaration in

the gazette on 29.5.1990 is

therefore within the period

prescribed by sub-section (1) and

therefore the proceedings are not

vitiated in any manner."

Undoubtedly, the judgment of Rajasthan High Court in

Jagrup Singh (supra) supports the contention raised by the

learned counsel for the appellants. A learned Single Judge

of the High Court differing with the view taken by the

Kerala High Court held as follows:-

"Thus, viewing from any angle,

whether applying the test of plain

literal dictionary meaning to the

language used in the Act or,

applying the test of Mischief Rule

of interpreting the Statute, or

looking from the point of view of

legislative intention, the

conclusion is irresistible that the

act of making it known public, in

official manner and, that act has

to be performed within a period of

one year from the date of

notification under S.4(1). The act

of making declaration known in the

official manner has been prescribed

under S.6(2) of the Act. The

principle is well settled that

where any statutory provision

provides a particular manner for

doing particular act, then, that

thing or act must be done in

accordance with the manner

prescribed. Therefore, the act of

making declaration of Government's

satisfaction in regard to the

requirement of the particular land

for any public purpose is complete

only when the same is made known by

publishing the said satisfaction in

the manner prescribed under S.6(2),

for the purpose of further

proceedings in the matter of land

acquisition, in terms of the other

provisions of the Act. It is only

after the publication of the

declaration in the manner

prescribed under S.6(2) that it

becomes a declaration which is

conclusive proof of the fact that

land is needed for public purpose

and it is only `making of such

declaration', which furnishes

conclusive proof of such

satisfaction that authorises the

appropriate Government to acquire

land in the manner thereafter

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provided under the Act. It is only

after making such declaration that

the appropriate Government can

issue directions to the Collector

to take orders for acquisition of

land under S.7 of the Act. It is

only after making of such

declaration which includes

publication thereof also, that

provisions of S.11-A becomes

effective in suppressing the

mischief of which it has been

enacted.

Summing up of aforesaid discussion,

is that making of a declaration u/s

6(1) within its ambit includes the

act of making the document of

declaration known or published

officially. Sub-sec. (2) of S.6

provides only the modes of

publication of declaration in all

the modes prescribed under S.6(2)

has to be made within the period

prescribed under S.6(1)."

The learned Judge of the Rajasthan High Court is right

to a limited extent when he observed: `the conclusion is

irresistible that the act of `making declaration' by the

appropriate Government that any particular land is needed

for public purpose, include the act of making it known

public, in official manner and, that act has to be performed

within a period of one year from the date of notification

under S.4(1)." However, the learned Judge erred in holding

thus: "It is only after the publication of the declaration

in the manner prescribed under S.6(2) that it becomes a

declaration which is conclusive proof of the fact that the

land is needed for public purpose and it is only "making of

such declaration", which furnishes conclusive proof of such

satisfaction", because there is nothing in the Statute to

suggest by publishing in the Official Gazette the `making of

declaration' has not been achieved nor is there anything in

the Statute to show that the modes of publications

prescribed under Section 6(2) notwithstanding the express

language used in that Section about which we have already

pointed out, namely, `hereinafter' those modes also govern

the publication at the prior stage, namely, under Section

6(1).

Therefore, we hold that the judgment of the Rajasthan

High Court does not correctly lay down the law.

In State of Haryana & Anr. Vs. Raghubir Dayal - (1995)

1 SCC 133, this Court had occasion to consider the effect of

failure to publish the substance of the declaration under

Section 6 in the locality. This Court in that context held

thus:-

"The purpose of publication of the

declaration is to give effect to

the conclusiveness of the extent of

the land needed for the public

purpose or for a company as made

under Section 6(3) of the Act.

Since there is an opportunity

already given to the owner of the

land or persons having interest in

the land to raise their objections

during the enquiry under Section 5-

A, or otherwise in case of

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dispensing with enquiry under

Section 5-A unless they show any

grave prejudice caused to them in

non-publication of the substance of

the declaration under Section 6(1),

the omission to publish the

substance of the declaration under

Section 6(1) in the locality would

not render the declaration of

Section 6 invalid. We are not

intending to say that the officer

should not comply with the

requirement of law and it is their

duty to do it. But their

dereliction to do so per se does

not render the declaration under

Section 6 illegal or invalid."

The above view of this Court lends support to the view

that for the purpose of calculating the limitation

prescribed under proviso to Section 6(1)(ii), it is not the

last of the publication in the series that should be taken

into account, but the publication that was made in the first

instance under Section 6.

In the light of the law laid down by this Court, we

have no hesitation to hold that the declaration published

under Section 6 of the Act was well within one year and the

challenge to the same has been rightly rejected by the High

Court. However, the view taken in the judgment of the High

Court under appeal that the relevant date for reckoning the

period of limitation will be the date of making of the

declaration under Section 6, may not be correct. As held in

Krishi Utpadan Mandi Samiti's case, mere making of

declaration is not enough. The making of declaration under

Section 6 is complete for the purpose of Proviso to Section

6(1)(i) &(ii) when it is published in the official gazette.

On facts we have seen that the Notification was lastly

published on 6.8.92 in the Official Gazette and declaration

under Section 6 was published in the Gazette on 5.8.93 which

is well within one year. In the result, the appeal fails and

the same is dismissed with no order as to costs.