WP/17924/1997 of N.Umapathy Reddy, Vs State of A.P., on 29 December 2006

Conclusion

ORDER:

1. This writ petition has been instituted by a devotee of the templequestioning the action of the respondent-State in seeking to acquirecompulsorily land of an extent of Ac.1.50 cents situated in Survey No.126/1 ofVelkur village of Gangadhara Nellore Mandal, Chittoor District belonging toSri Thirumaleswara Swamy Temple, for the purpose of providing house sitesto the poor Scheduled Caste persons.

2. Various contentions have been canvassed by the writ petitioner. Heraises an objection that any attempt to acquire the land belonging to thetemple, which is one of the ancient temples in the locality, would adverselyaffect the services to be performed in the temple. He also raises a contentionthat the acquisition itself is not for bonafide purpose. He asserts that sizablenumber of villagers have raised their objections for this compulsoryacquisition.

3. A counter affidavit has been filed in the matter. The counter affidavit hasdisclosed that the proposals for the compulsory acquisition of the land hasbeen approved by the District Collector, Chittoor on 08-03-1997 and on thesame date he has also approved the declaration to be published underSection 6 of the Land Acquisition Act (for short ‘the Act’). Thus the counteraffidavit asserts that the draft notification under Section 4 (1) of the Act and thedeclaration under Section 6 of the Act have been approved and publishedon the same date. The question as to the correctness and proceduralpropriety of such an action on the part of the State has fallen for considerationbefore a Division Bench of this court in the case of Katari Satyanarayana and others Vs. District Collector, Krishna,[[1]]and it had been answered as follows:

“ The next objection to the acquisition proceedings is that as the declaration underSection 6 of the Act has been published simultaneously with the draft notificationunder Section 4 (1) of the Act, the acquisition proceedings would become illegal. Sub-section (4) of S.17 of the Act as it stood before amendment, insofar as it is relevant for our purpose was in the following terms:- “……...the appropriate Government may direct that the provisions of Section 5-A shallnot apply and if it does so direct, a declaration may be made under Section 6 in respectof the land at any time after the publication of the notification under Section 4, sub-section (1).”

Interpreting that section, the Supreme Court in Somawanti Vs. State of Punjab, AIR1963 S.C.151, held thus:

“ The law does not make the prior publication of notification under sub-section (1)of Section 4 a condition precedent to the publication of a notification under sub-section(1) of Section 6 .”

The Supreme Court observed:

“Where acquisition is being made after following the normal procedure the notificationunder the latter section (Sec.6(1)) will necessarily have to be published subsequent tothe notification under the former section (Sec.4(1)), because in such a case theobservance of procedure under S.5-A is interposed between the two notifications. Butwhere S.5-A is not in the way there is no irregularity in publishing those notifications onthe same day.”

The position insofar as our State is concerned, changed after enactment of the LandAcquisition (Andhra Pradesh Amendment and Validation) Act,9 of 1983. After the saidamendment, sub-section (4) of S.17 was in the following terms:- “………….the appropriate Government may direct that the provisions of S.5-A shall notapply, and, if it does so direct, a declaration may be made under S.6 in respect of theland at any time after causing public notice under S.4, sub-section (1).”

From a perusal of sub-section (4) of S.17 of the Act as amended by the LandAcquisition (A.P.Amendment and Validation)Act, 9 of 1983 (for short “the StateAmending Act”), it is clear that the declaration under sub-section (2) of S.6 couldhave made only after causing public notice under S.4, sub-section (1). Therefore,having regard to the provisions of sub-section (4) of S.17 of the Act as amended bythe State Anmending Act, a declaration made under S.6(1) of the Act could havebeen published in Official Gazettte under S.6(2) of the Act only after public noticeunder S.4(1). A declaration published simultaneously which would naturally bebefore causing the public notice would, be in violation of the provisions of sub-section (4) of S.17 and therefore illegal. This was the view taken by a learned singlejudge of this Court in Smt.Komala Devi V. State of A.P. (1984) 1 APLJ 80.Acquisition (A.P.Amendment and Validation)Act, 9 of 1983 (for short “the StateAmending Act”), it is clear that the declaration under sub-section (2) of S.6 couldhave made only after causing public notice under S.4, sub-section (1). Therefore,having regard to the provisions of sub-section (4) of S.17 of the Act as amended bythe State Anmending Act, a declaration made under S.6(1) of the Act could havebeen published in Official Gazettte under S.6(2) of the Act only after public noticeunder S.4(1). A declaration published simultaneously which would naturally bebefore causing the public notice would, be in violation of the provisions of sub-section (4) of S.17 and therefore illegal. This was the view taken by a learned singlejudge of this Court in Smt.Komala Devi V. State of A.P. (1984) 1 APLJ 80.

However, after the aforementioned State amendment the Parliament also amendedthe Land Acquistion Act by the Land Acquisition (Amendement) Act (Act 68 of 1984) (for short “ the Central amending Act”). After the said amendment sub-section (4) ofS.17 reads as follows:-the Land Acquistion Act by the Land Acquisition (Amendement) Act (Act 68 of 1984) (for short “ the Central amending Act”). After the said amendment sub-section (4) ofS.17 reads as follows:- “……………….the appropriate Government may direct that the provisions of S.5-Ashall not apply, and, if it does so direct, a declaration may be made under S.6 inrespect of the land at any time after the date of publication of the notification underSec.5, sub-section (1).shall not apply, and, if it does so direct, a declaration may be made under S.6 inrespect of the land at any time after the date of publication of the notification underSec.5, sub-section (1).

To understand the import of the phrase “ after the date of publication of thenotification”, it would be useful to refer to S.4(1) of the Act as it stands afteramendment.amendment.

“4. Publication of preliminary notification and powers of officers thereupon.

(1) Whenever it appears to the appropriate Government or the DistrictCollector that land in any locality is needed or is likely to be needed forany public purpose, a notification to that effect shall be published in theOfficial Gazette, or the District Gazette and in two daily newspaperscirculating in that locality of which at least one whall shall be in theregional language and the Collector shall within forty days from the date ofpublication of such notification cause public notice of the substance ofsuch notification to be given at convenient places in the said locality thelast of the dates of such publication and the giving of such public noticebeing hereinafter referred to as the date of the publication of thenotification.”Collector that land in any locality is needed or is likely to be needed forany public purpose, a notification to that effect shall be published in theOfficial Gazette, or the District Gazette and in two daily newspaperscirculating in that locality of which at least one whall shall be in theregional language and the Collector shall within forty days from the date ofpublication of such notification cause public notice of the substance ofsuch notification to be given at convenient places in the said locality thelast of the dates of such publication and the giving of such public noticebeing hereinafter referred to as the date of the publication of thenotification.”

A reading of these two sub-sections makes it clear that ‘ the date ofpublication ‘ would be the last of the dates of publication of S.4(1)notification in the Gazette, publication of the said notification in two dailynewspapers circulating in the locality and the date of publication ofsubstance of such notification in the locality. Obviously last of the dates ofthe publication of the notification above referred to can only be afterpublication of the draft notification in the Gazette. Therefore, declarationunder S.6(1) can validly be published only after the date of publication ofthe notification referred to in sub-section (1) of S.4. As such, simultaneouspublication of declaration under S.6(2) and draft notification under S.4(1)would be in violation of sub-section (1) and would, therefore, render thepublication of the declaration under S.6(2) invalid and illegal. We aresupported in our view by a recent judgment of the Supreme Court in Stateof U.P. Vs. Radhey Shyam Nigam, AIR 1989 SC 682. In that case forpurposes of different housing schemes, notifications were issued foracquiring lands. The draft notification under S.4(1) and the declarationunder S.6 in question were published simultaneously on 6[th] May,1985. ADivision Bench of the High Court of Allahabad before which the validity ofthe acquisition proceedings was challenged, upheld the objection thatsimultaneous publication of declaration under Sec. 6 with the draftnotification under S.4(1) was illegal, and quashed the declaration underS.6 of the Act. On appeal to the Supreme Court, the judgment of the HighCourt was confirmed and it was observed:

“ The words have to be understood in their usual and most knownsignification. If that be so, then the legislature must have had someintention in choosing the expression ‘after’ before ‘date of publication ofthe notification’ in sub-section (4) of S.17 of the Act while makingamendment by Amending Act No.68 of 1984. It is true that there were somechanges giving the meaning of the date of the publication in S.4(1) and (2)as well as S.6(2) of the Act. But for that, there was no need for the use ofthe expression ‘after the date’. If that be the position, then we must acceptthe interpretation put upon the amended clause by the High Court in thejudgment under appeal.”

From the above discussion it follows that the declaration under S.6 of the Actpublished in the Gazette on 9.11.1983, is illegal and invalid and it isaccordingly quashed.”

4. Bound as I am, by the authoritative pronouncement, I consider itappropriate to quash the impugned declaration under Section 6 of the Act.5. The writ petition is allowed but however without costs.

_________________________

NOOTY RAMAMOHANA RAO,J

29-12-2006Stp

[1] AIR 1990 A.P. page 326