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CASE NO.:

Appeal (civil) 7889 of 2001

Special Leave Petition (civil) 17502 of 2001

PETITIONER:

SRINIWAS RAMNATH KHATOD

Vs.

RESPONDENT:

STATE OF MAHARASHTRA & ORS...

DATE OF JUDGMENT: 19/11/2001

BENCH:

K.T.Thomas, S.N.Variava

JUDGMENT:

S. N. VARIAVA, J.

Leave granted.

Heard parties.

This Appeal is against a Judgment dated 24th August, 2001 by which

the Writ Petition filed by the Appellant has been dismissed.

Briefly stated the facts are as follows:

The 3rd Respondent required certain lands in Aurangabad city. Thus land

acquisition proceedings were started. A Notification under Section 4(1) of

the Land Acquisition Act was published in the Government Gazette on 21st

January, 1986. It had earlier been published in local newspapers on 3rd

November, 1985 and 6th November, 1985. The local publication in the

village took place on 30th January, 1986. The declaration under Section 6

was issued on 29th January, 1987. This declaration was published in the

local newspaper on 30th January, 1987. It was then published in the Official

Gazette on 19th March, 1987 and in the concerned locality on 24th April,

1987. At this stage it must be mentioned that notice under Section 9 was

received by the Appellant on 13th March, 1989. On 14th March, 1989 the

Appellant filed his reply opposing the acquisition. Respondent No. 2 passed

the final award on 21st April, 1989.

On 16th March, 1989 the Appellant filed this Petition in the High

Court of Bombay at Aurangabad. On 20th March, 1989 he obtained an ad-

interim stay preventing the Government from taking possession. However,

this Writ Petition ultimately came to be dismissed by the impugned Order.

Before us only one point has been urged. It has been submitted that

the Declaration under Section 6 of the Land Acquisition Act had not been

published within a period of one year from the last date of publication of the

Notification under Section 4. It is submitted that for this reason the

acquisition proceedings are vitiated and should be set aside.

At this stage it would be appropriate to set out Sections 4(1), 6 and

11-A of the Land Acquisition Act. These Sections read 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

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publication of the notification].

.

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 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 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 date of such

publication and the giving of such public notice, being

hereinafter referred to as the date of 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 a manner

hereinafter appearing.

11A. Period within which an award shall be made. - (1) 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 period, the entire

proceedings for the acquisition of the land shall lapse:

Provided that in a case where the said declaration has

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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."

(emphasis supplied)

Thus under Section 4 a notification 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 Land Acquisition Act. Also the first proviso to Section

6(1) lays down a time limit within which declaration has to be made. Very

significantly it does not lay down a time limit within which publication of

the declaration is to be made. Significantly the first proviso does not lay

down that publication cannot take place after the period prescribed therein.

As the first proviso to Section 6(1) only provides a time limit for a

declaration and not for publication, it has been incorporated in section (1) of

Section 6. It is for this reason that the legislature has not put this proviso

after sub-section (2) of Section 6.

It is admitted that the last publication of the notification under Section

4 was on 30th January, 1986. The declaration under Section 6 was

admittedly made on 29th January, 1987. If this date is taken into

consideration then the declaration is within a period of one year from the last

date of publication of the notification under Section 4. However, it is

submitted that under Section 6(2) every declaration has to be published in

the Official Gazette, in two daily newspapers circulating in the locality in

which the land is situated and also at convenient places in the locality. It is

submitted that a declaration under Section 6 becomes effective only after it

has been published. It is submitted that, therefore, the date of declaration

necessarily has to be the date when it was published in the Official Gazette

and in the manner provided in Section 6(2). It is submitted that as the

declaration was published in the Official Gazette on 19th March, 1987 and in

the village on 24th April, 1987 the declaration has been made after the expiry

of one year from the last date of publication of the notification under Section

4.

In support of this submission reliance was placed upon the case of

Eugenio Misquita v. Sate of Goa reported in (1997) 8 SCC 47. In this case

it was inter alia held as follows:

"7. 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 clause (ii) of the first proviso to Section 6(1). 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 clause (ii) of

the first proviso to Section 6(1).

xxx xxx xxx

xxx xxx xxx

17. 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 Samity case

[(1995) 2 SCC 497] mere making of declaration is not enough.

The making of declaration under Section 6 is complete for the

purpose of clauses (i) and (ii) of the first proviso to Section 6(1)

when it is published in the Official Gazette."

Relying heavily on the above observations it has been submitted that this

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Court has already held that the relevant date for reckoning of limitation is

not the date of making of the declaration under Section 6. It is submitted

that this Court has held that a declaration under Section 6 is complete only

when it is published in the Official Gazette.

At first blush it does appear that the above observations support the

Appellant. If that were so then this question would have had to be referred to

a larger bench as such a finding would be against the clear wording of

Section 6 which admits of no ambiguity.

However, in our view, in Eugenio Misquita's case (supra) this Court is

not holding that a declaration under Section 6 is not within time provided it

is published at a later date. This question has been left open. This is clear

from the observations in para 17 which read as follows:

" 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."

The words "may not be correct" clearly show that the question is left open.

In our view the wordings of Sections 4, 6 & 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 commuted 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 words published in

clauses (i) and (ii) of the first proviso to Section 6(1) refer 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 wordings of the first proviso to Section 6(1) become

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 Act, 1984 and after expiry of one year [under clause (ii)]

where notification under Section 4 was published after commencement of

Land Acquisition Act, 1984. Thus the proviso clearly talks of "Publication"

in respect of notification under Section 4 and then provide a time for

"making of declaration" under Section 6. The legislature is purposely

omitting to use the words "Publication of declaration" in the proviso to

Section 6.

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.

Even if Eugenio Misquittas case was laying down what is canvassed

by counsel the Appellant cannot succeed. To be noted that the paras 8 and

9 of that Judgment read as follows:

"8. According to the learned counsel, the limitation prescribed

under clause (ii) of the first proviso to Section 6(1) has to be

considered with reference 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 clause (ii) of

the first proviso to Section 6(1).

9. 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

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decisions that have interpreted the word "made" to mean

"published" for the reasons stated in 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 the 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." (emphasis supplied)

Thus a contention similar to the one made here had been rejected.

Learned Judges then observed in para 16 as follows:

16. .that for the purpose of calculating the limitation

prescribed under clause (ii) of the first proviso to Section 6(1),

it is not the last of the publications in the series that should be

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

instance under the Section .

Thus a detailed reading of the authority makes it clear that the last

date under Section 6(2) is only for purposes of computing limitation under

Section 11-A. Publications under Section 6(2) are ministerial acts and

procedural in nature. In any case, in this case the date of first publication of

declaration is 30th January, 1987. This is also within one year of last date of

notification under Section 4. The High Court was thus right in holding that

the proceedings were not vitiated.

We, therefore, see no substance in the appeal. We see no infirmity in

the impugned Judgment. Accordingly the appeal stands dismissed. There

will be no order as to costs.