K. Nanjunda Swamy and Others Vs. State of Karnataka and Others - Court Judgment

G. Patri Basavana Goud, J.

1. Survey Numbers 64 and 118/1 of Nagawara Village in Bangalore North Taluk measuring 3 acres 23 guntas and 1 acre 11 guntas respectively, owned by Nanjundaswajny, appellant in W.A. No. 7189 of 1996, Survey Nos. 61/1 and 63/2 of the same village respectively measuring 1 acre 34 guntas and 32 1/2 guntas, owned by the appellant in W.A. No. 7190 of 1996, namely Pillanna since deceased by his legal representatives, and Survey No. 65 of the same village measuring 1 acre 32 guntas owned by Vehkatappa and his brothers who are appellants in W.A. No. 9704 of 1996, were among 179 survey numbers proposed for acquisition for the purpose of housing scheme of the Karnataka Housing Board. Preliminary notification was issued on 27-6-1992 and was published in the Official Gazette on 30-7-1992. On consideration of objections of the appellants and others under Section 5-A of the Land Acquisition Act, 1894 ('the Act' for short), a declaration under Section 6(1) of the Act was made on 27-9-1995 and the same was published in the Gazette on 21-11-1995. On the ground that the declaration under Section 6(1) of the Act has not been made within one year from the date of publication of Section 4(1) notification as required under clause (ii) of the first proviso to sub-section (1) of Section 6 of the Act, appellants approached this Court under Article 226 of the Constitution seeking quashing of the said preliminary and final notifications. Learned Single Judge having dismissed the writ petitions, these appeals are filed under Section 4 of the Karnataka High Court Act, 1961.

2. Writ petitions concerned came to be disposed of by the learned Single Judge at the stage of preliminary hearing itself. Writ Petition No. 7189 of 1996 filed by Nanjunda Swamy and Writ Petition No. 7190 of 1996 filed by N. Pillanna were disposed of by a common order dated 19-6-1996, and W.P. No. 9704 of 1996 filed by Venkatappa and his brothers was disposed by the order dated 30-7-1996. All the three writ petitions were disposed of at the preliminary hearing stage itself.

3. Preliminary notification under Section 4(1) is required to be published in the Official Gazette and in two daily newspapers circulating in the locality concerned, of which at least one shall be in the regional language. Section 4(1) further requires causing of public notice of the substance of such notification at convenient places in the locality. Last of the dates of such publication and giving of such public notice, as provided under Section 4(1) of the Act, is referred to as the date of publication of the notification. Clause (ii) of the first proviso to sub-section (1) of Section 6 mandates that no declaration under Section 6(1) shall be madeafter expiry of one year from the date of the said publication of the notification under Section 4(1).

4. The grievance of the appellants is that the declaration under Section 6(1) in the present set of cases, made on 27-9-1995, is after the expiry of one year period from the date of the said publication of thenotification under Section 4(1).

5. Relevant dates could be gathered from the order of the learned Single Judge in Writ Petition No. 7181 of 1996. Preliminary notification under Section 4(1), dated 27-6-1992 was published in the Official Gazette on 30-7-1992. The substance of the notification was published in the locality on 9-5-1994. Publication in the two newspapers was done on 25-9-1994 and 28-9-1994. As provided in the last portion of sub-section (1) of Section 4 of the Act, the date of publication of the notification would be the last of these dates, namely, the last of publications made in the Official Gazette dated 30-7-1992, the publication in the locality on 9-5-1994, the publication in one newspaper on 25-9-1994 and publication in another newspaper on 28-9-1994. That means, the date of publication of the notification under Section 4(1) of the Act is to be taken as 28-9-1994. The declaration under Section 6(1) of the Act has been made on 27-9-1995. The declaration is, therefore, within one year from the date of publication of Section 4(1) notification within the meaning of clause (ii) of the first proviso to sub-section (1) of Section 6 of the Act.

6. Learned Counsel for the appellants however urged that 28-9-1994 cannot be taken as the date of publication of Section 4(1) notification. They submit that Section 4(1) notification dated 27-6-1992 having been published in the Official Gazette dated 30-7-1992, it did not need as much as two years time to effect the publication in the locality and in the newspapers. Learned Counsel urged that even if it is to be taken that the three modes of publication under Section 4(1) of the Act need not be simultaneous, they should at least be contemporaneous and that the said gap of two years in the present set of cases can by no stretch of imagination be taken as contemporaneous. Learned Counsel for the respondents submit that the gap of two years time is not unreasonable but was unavoidable and, that, therefore, the last of three dates, namely28-9-1994, has to be taken as the date of publication of Section 4(1) notification, and that by doing so, making of declaration under Section 6(1) on 27-9-1995 would be within one year. Learned Counsel for the Karnataka Housing Board, for the housing scheme of which the lands concerned were being acquired, draws our attention to the submission he had made before the learned Single Judge as referred to in the order relating to W.P. No. 7181 of 1996. The learned Single Judge therein refers to the submission of the said learned Counsel for the Housing Board to the effect that due to 'administrative difficulties' there was some delay in publishing the preliminary notification in the locality and in the newspapers.

7. Before considering the submissions on the above aspect, one other submission of the learned Counsel for the appellants may, at the outset, be considered. It was urged on behalf of the appellants that the declaration under Section 6(1), though made on 27-9-1995, was published in the Official Gazette on 21-11-1995, and it is the said latter date that would be relevant in the context. For the purpose of computation of one year period as contemplated in clause (ii) of the first proviso to sub-section (1) of Section 6 of the Act, it is the making of declaration under Section 6(1) of the Act that is relevant and not the publication of declaration in accordance with sub-section (2) of Section 6 of the Act. Relevant date, therefore, would be the date of making declaration under Section 6(1), namely 27-9-1995.

8. Coming to the aspect of gap of two years in effecting three modes of publication as required by Section 4(1), it is to be stated that since prior to the amendment of Section 4(1) of the Act by the Amending Act 68 of 1984, it is a settled position that the publication in the. Gazette and the public notice in the locality as required by Section 4(1) prior to the said amendment, and publication by three modes after its amendment by the Amending Act 68 of 1984, was neither meant to be simultaneous nor was it practicable to do so. Certain time gap was always inevitable; in the sense that several modes of publication as required by Section 4(1) should be taken as contemporaneous though not simultaneous. Where the gap of time is so large, it becomes necessary to probe further to discover if there was an acceptable cause for the delay, whether the delay betrayed lack of bona fides on the part of the Acquisition Authorities, whether it was a colourable exercise of power, or whether it was to cause prejudice to someone.

9. In Deepak Pahwa and Others v Lt. Governor of Delhi and Others, prior to Amending Act 68 of 1984, the Supreme Court observed thus:

'3. It may be noticed at once that Section 4(1) does not prescribe that public notice of the substance of the notification should be given in the locality simultaneously with the publication of the notification in the Official Gazette or immediately thereafter. Publication in the Official Gazette and public notice in the locality are two vital steps required to be taken under Section 4(1) before proceeding to take the next step of entering upon the land under Section 4(2). The time factor is not a vital element of Section 4(1) and there is no warrant for reading the words 'simultaneously' or 'immediately thereafter' into Section 4(1). Publication in the Official Gazette and public notice in the locality are the essential elements of Section 4(1) and not the simultaneity or immediacy of the publication and the public notice. But since the steps contemplated by Section 4(2) cannot be undertaken unless publication is made and public notice given as contemplated by Section 4(1), it is implicit that the publication and the public notice must be contemporaneous though not simultaneous or immediately after one another. Naturally contemporaneity may involve a gap of time and by the very nature of the things, the publication in the Official Gazette and the public notice in the locality must necessarily beseparated by a gap of time. This does not mean that the publication and the public notice may be separated by a long interval of time. What is necessary is that the continuity of action should not appear to be broken by a deep gap. If there is publication in the Gazette and if there is public notice in the locality, the requirements of Section 4(1) must be held to be satisfied unless the two are unlinked from each other by a gap of time so large as may lead one to the prima facie conclusion of lack of bona fides in the proceedings for acquisition. If the notification and the public notice are separated by such a large gap of time it may become necessary to probe further to discover if there is any cause for the delay and if the delay has caused prejudice to anyone'.

In State of Haryana and Another v Raghubir Dayal, the Supreme Court was mainly considering whether the requirements under Sections 4(1) and 6(2) were mandatory or directory. In the case concerned therein, 4(1) notification had been published in the Gazette on 25-10-1988, in the newspaper on 28-7-1989. Holding that the requirement under Section 4(1) is mandatory, the Supreme Court observed at the end of paragraph 7 that though there was a time-gap of more than six months between the date of notification under Section 4(1) in the State Gazette and the date of publication of the substance of the notification in the locality, delay by itself does not render the notification under Section 4(1) published in the State Gazette invalid.

In Senjeevanagar Medical and Health Employees Co-operative Housing Society v Mohd. Abdul Wahab and Others , the Supreme Court was considering the provisions of the Land Acquisition (Andhra Pradesh Amendment and Validation) Act, 1983, prescribing with retrospective effect that the substance of Section 4(1) notification be published in the locality within 40 days from the date of its publication in the Official Gazette. The Supreme Court examined this rigour of 40 days contemplated by the said Validation Act after the Parliament enacted the Amending Act 68 of 1984. The Supreme Court then observed:

'10. The Parliament enacted Amendment Act 68 of 1984 prescribing the procedural steps in publication of the notification under Section 4(1) and declaration under Section 6 without prescribed time limit with consequences of non-compliance thereof, and in Section 11-A declaring that if the steps respectively prescribed therein are not taken, the acquisition entails lapse, In other words, the Parliament evinces that neither simultaneous nor immediate local publication of substances is insisted upon. But compliance thereof and publication in two newspapers are required to be done. The object is to put the owner or interested person on notice of acquisition of the land for public purpose, In case of enquiry under Section 5-A it should also be done and all the steps should be taken within one year from the last of the dates of thepublication of notification under Section 4(1). Otherwise the acquisition stands lapsed. Even thereafter award should be made within two years from the date of publication of Section 6 declaration. Publication of Section 4(1) notification in the Official Gazette, its substance in the locality and also publication of the notification in two local newspapers is envisaged but no time limit for their compliance has been prescribed thereunder. If urgency power under Section 17(4) is not invoked, notice under Section 5-A is required to be given to the owner and then enquiry is conducted after giving opportunity to the owner or interested person. Thereafter, declaration should be published within one year from last of the dates of the publication under Section 4(1). In other words, from September 24, 1984, all the prescribed procedural steps should be done but without time schedule'.

In the light of the said salient features of the Amendment Act 68 of 1984, the Supreme Court held that the rigour of 40 days under the Validation Act got diffused with effect from September 24, 1984 since it was inconsistent with the Amendment Act 68 of 1984.

Lastly, in respect of three modes of publication under Section 6(2) of the Act, identical to those under Section 4(1), a Division Bench of this Court in Ramachandrappa and Others v State of Karnataka and Others, held thus:

'14. The modes of publication contemplated under this section are simultaneous. It may however be mentioned that simultaneous publication cannot be said to mean publication on the one and the same day. It means publication within a reasonable time after the declaration is made under sub-section (1) of Section 6 of the Act. The publication by means of the three modes noted herein above is mandatory. Last date of such publication shall therefore be deemed to be the last date of publication of notice in any of the aforesaid 3 manners. However, if there is an unexplained or uncalled for or mala fide delay in publication of the notice in any of the manners prescribed, the period of limitation may be deemed to commence from the date of admittedly earlier valid publication. The delay in mala fide publication of a notice may also render the whole of acquisition liable to be quashed. The provisions of Section 6(2) are almost identical as are prescribed for the publication of the notification under Section 4(1) of the Act'.

10. The emphasis thus throughout has been the publication of Section 4(1) notification by three modes of publication as required thereunder within a reasonable time. If the time gap is too large and has remained unexplained, it may be necessary, as observed by the Supreme Court in Deepak Pahwa's case, supra, to probe further to discover if there is any cause for the delay and if the delay has caused prejudice to any one. As observed by a Division Bench of this Court in Ramachandrappa's case, supra, if there is any unexplained or uncalled for or malafide delay in publication of the notice in any of the manners prescribed, the period of limitation may be deemed to commence from the date of admittedly earlier valid publication.

In the present set of cases, the date of admittedly earlier valid publication is the date of publication of Section 4(1) notification in the Official Gazette, namely, that dated 30-7-1992. The substance of the notification published in the locality is one year ten months thereafter and publication in two newspapers is two years two months thereafter. Learned Counsel for the respondents submit that this delay of two years is due to administrative difficulties. Learned Counsel for the appellants however urged that the authorities have resorted to publication in the locality and in the newspapers after two years only with a view to overcome the statutory period of one year limitation that is imposed by clause (ii) of the first proviso to sub-section (1) of Section 6, as otherwise there was no possible reason at all for the said delay to be caused. It is urged on behalf of the respondents that since the matters were disposed of by the learned Single Judge at the preliminary hearing stage itself, they had no opportunity of placing on record necessary material to explain the absolute unavoidability of taking nearly two years time in effecting three modes of publication as required by Section 4(1) of the Act. If on consideration of the material in possession of the respondents and to be placed on record by them, the delay is to be accepted as reasonable and caused under the unavoidable circumstances, such delay by itself would not vitiate the acquisition proceedings. On the other hand, if on examination of the said material, it were to be concluded that there was no reasonable cause at all for effecting publication in the said newspapers and in the locality two years after the date of publication of Section 4(1) notification in the Official Gazette, and that it is resorted to only to overcome the statutory period of one year limitation that is imposed by clause (ii) of the first proviso to sub-section (1) of Section 6 of the Act, then there should be no hesitation to hold the acquisition proceedings as having stood vitiated in respect of the lands concerned herein, notwithstanding the fact that they are among 179 survey numbers being acquired for purpose of Housing Scheme of the second respondent-Karnataka Housing Board. Learned Single Judge had no occasion to examine the material in this regard because the matters were disposed at the stage of preliminary hearing. Respondents also could not place on record the material in their possession in that regard for the same reason. It, therefore, becomes imperative to have the matters decided on merits. That could be done only by remitting the matter back to the learned Single Judge with a request to consider the material on record that would be placed by the parties concerned and to decide the matters afresh in accordance with law.

11. Appeals are allowed. Impugned orders are set aside. Matters are remitted to the learned Single Judge for fresh disposal in accordance with law. No costs.