Medical & Health Employees Co-Operative Housin Vs. Mohd. Abdul Wahab &
Ors  INSC 220 (8
K.Ramaswamy, K.Ahmad Saghir S. (J) G.B. Pattanaik (J) K. Ramaswamy,J.
1996 SCC (3) 600 JT 1996 (2) 173 1996 SCALE (2)82
appeal by special leave arises from the judgment of the Andhra Pradesh High
Court made in Writ Appeal No.692 of 1982 on March 2, 1983. Notification under Section 4 
of the Land Acquisition Act [1 of 1894] [for short, "the Act"]
acquiring the lands in question to provide house sites to Class IV employees of
the appellant-Society, was published in the State Gazette on January 11, 1979.
The substance of the notification was published in the locality on march 17,
1979. Enquiry under Section 5A of the Act was conducted and the Land
Acquisition Officer [LAO] submitted his report to the Government on June 19, 1979. Declaration under Section 6 was
published on March 29,
1980. The LAO after
conducting enquiry made his award under Section 11 on December 13, 1980 and notice thereof was served on
the respondents. It is stated that since the respondent did not attend the
office of the LAO, as directed, on January 1, 1981, the compensation was deposited in
the court of the Subordinate Judge. It is stated that after LAO had taken
possession of the land from the respondents, he had handed over the land to the
appellant but actual date was not mentioned.
also stated by the appellants that thereafter plots were laid out and were
allotted to its members and some members had started construction of their
houses. At that stage, the respondents had filed the writ petition on August 9, 1982 and the Full Bench following its
judgment in Yadaiah & Ors. vs. Govt. of A.P.[(1983) 1 DLT 233] quashed the
notification and the declaration holding that the notifications under Section
4(1) were not simultaneously published in the Gazette and in the locality.
this appeal by special leave. Shri C. Sitaramaiah, learned senior counsel for
the appellant contended that in Deepak Pahwa v. Lt. Governor [(1985) 1 SCR 588]
this Court had overruled the Full Bench decision in Yadaiah's case and approved
of the ratio in various Division Bench judgments of that Court referred
therein. The State legislature amended the Act by Land Acquisition [Andhra
Pradesh Amendment and Validation] Act, 1983 [Act 9 of 1983] [for short,
"the Validation Act"] giving retrospective effect, viz., w.e.f. September 12, 1975, the date on which the Land
Acquisition [Andhra Pradesh Amendment] Act, 1976 had come into force. Though
the Validation Act retrospectively prescribes publication of the substance of
the Section 4  notification within 40 days from the date of its publication
in the District Gazette, the publication of the substance even after 40 days
does not become invalid by the ratio in Deepak Pahwa's case and by operation of
clause [b] of Section 4 of the Validation Act. He also contended that since
possession had already been taken, after the award was made, the land stood
vested in the State and the beneficiaries, free from all encumbrances. The High
Court, therefore, was not right in its quashing Section 4  notification and
Section 6 declaration.
also contended that the Land Acquisition [Amendment] Act [68 of 1984] provides
procedure for publication of the notification in the Gazette, newspapers and
the local publication and limitation for publication of the declaration under
Section 6 within one year from last of the dates of the publication under
Section 4  which would indicate that various publications under Section 4
 could be done at periodical intervals without time limit within the maximum
period of one year.
Validation Act thereafter also does not hold the field.
A. Subbarao, learned counsel for the respondents contended that after the
Validation Act was given retrospective effect from September 12, 1975 and local publication made after 40 days, the notification
under Section 4  became invalid; consequently, the declaration under Section
6 is not est. He placed reliance on Land Acquisition Officer, Hyderabad Urban
Development Authority, Hyderabad, A.P. v. Mohd.Amri Khan & Ors. [(1986)
1 SCC 3] and C.K. Narayana Chary &Ors. v. Pothepalli Ashanna & Ors. [(1986)
1 SCC 9] the ratio wherein it was held that local publication after 40 days
invalidates Section 4  notification.
respective contentions give rise to the question: whether the view of the High
Court is correct in law? The Land Acquisition [Andhra Pradesh Amendment] Act,
1976 was enacted with a view to accelerate the pace of acquisitions to provide
house sites to the poor and to empower the Collectors to issue notification
under Section 4 [11 and the declaration under Section 6 and their publication
in the respective district Gazettes and to make payment of compensation to the
lands so acquired if the compensation does not exceed Rs.500/- and in other
cases in installments not exceeding Rs.500/- with interest at 6% on such
furtherance thereof, acquisition of the lands of private persons on massive
scale was undertaken in all the districts of the State.
exercised power under Section 17  dispensing with the enquiry under Section
5A and notifications under Section 4 [11 and declarations under Section 6 were
simultaneously published in the Gazette. But the officers at the lower level
delayed publication of the notification under section 4  Consequentially,
spate of litigation had sprung up in Andhra Pradesh High Court invariably
challenging the validity of the notifications.
noticed by this Court in Deepak Pahwa's case [supra], several Division Bench of
the High Court have taken consistent view that simultaneous publication of the
notification under Section 4 in the Gazette and local publication of its
substance was not mandatory. A single Judge and Division Bench had struck a
discarded note leading to reference to the Full Bench which in Yadaiah's case
had held that the publication of the notification in the Gazette and the local
publication of its substance should be done on the same day. Following that
view, the same Full Bench quashed the impugned notification and declaration
covered in that appeal.
Validation Act expressly referred the said decision and validated with
retrospective effect all the notifications issued earlier than the date on
which the A.P. Amendment Act, 1976 came into force, removing the base of the
Full Bench judgment. Section 2 of the Validation Act provides that the
Collector shall, within 40 days from the date of the publication of such
notification, cause the substance of the notification published. This led to
three-Judge Bench was required to consider whether delay in giving public
notice in the locality makes the notification invalid. Yadaiah's case was cited
in support of the contention. Therein a combined notification under Sections 4
and 17(4) and declaration under Section 6 were published in the Gazette on June 18, 1984 and public notice of the substance
of the notification under Section 4 was given in the locality on July 17, 1984 with a delay of 29 days.
Post-notification delay of eight years due to inter- departmental
correspondence was pressed into service to hold that there was no real urgency.
of invoking urgency clause and consequential omission to hold enquiry under
Section 5A was under challenge.
Court had held that Section 4  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. They are two steps required to be taken under Section 4  before
taking further steps under sub-section . The time factor is not a vital
element and there is no warrant to read the words 'simultaneously' or
'immediately thereafter' in Section 4 . They are not required to be done
simultaneously or immediately thereafter.
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
be separated 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.
there is publication in the Gazette and if there is public notice in the
locality, the requirements of Section 4  must be held to be satisfied unless
the two are unlinked from each other by a gap of time so long as it may lead
one to the prima facie conclusion of lack of bona fides in the proceedings for
acquisition. It was held that when the Government exercises power under Section
17 , it obviously feels that urgency is such that it does not brook delay
and, therefore, the Government directs that possession of the land be taken
immediately on publication of the declaration under Section 6 and followed by
notice under Section 9. Delay of eight years on the part of the tardy officials
to take further action in the matter of acquisition is not sufficient to
nullify the urgency which existed at the time of issuing the notification and
to hold that there was never any urgency. This Court overruled the Full Bench
judgment in Yadaiah's case [supra] and approved of the Division Bench judgments
of the Andhra Pradesh High Court, apart from other cases.
Amri Khan's case and C.K.Narayana Chary's cases [supra] this Court considered
the effect of the Validation Act and another Bench of three Judges held that
after the Validation Act had come into force with retrospective effect, despite
the law in Deepak Pahwa's case, the Validation Act is required to be given
and public notice of the substance thereof has to be given in the locality
within 40 days from the date of the publication of Section 4  notification
which would apply to every notification issued by the appropriate Government
after September 12,
1975. ln case the
substance of such notification was not given in the locality within 40 days
from the date of the publication of the notification in the Gazette, it would
introduce a fatal infirmity invaliding such notification. In that case a delay
of more than 40 days in the local publication of the substance of the
notification violated the mandate enacted in sub-section  of Section 4 as it
stood from and after September
12, 1975. Therefore,
it was liable to be struck down.
Parliament enacted Amendment Act 68 of 1984 prescribing the procedural steps in
publication of the notification under Section 4  and declaration under
Section 6 without prescribed time limit with consequences of non- compliance
thereof and in Section 11A 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
substance 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 5A it should also be done and all the steps
should be taken within one year from the last of the dates of the publication
of notification under Section 4 . Otherwise the acquisition stands lapsed.
Even thereafter award should be made within two years from the date of the
publication of Section 6 declaration.
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 there under.
if urgency power under Section 17  is not invoked, notice under Section 5A
is required to be given to the owner and then enquiry is conducted after giving
opportunity to the owner or interested person.
declaration should be published within one year from last of the dates of the
publication under Section 4 . In other words, from September 24, 1984, all the prescribed procedural
steps should be done but without time schedule. The declaration should be
published within one year. Maximum outer limit was prescribed. The Central Act
68 of 1984 and Validation Act were enacted under Entry 42 of List III
[Concurrent List of the Seventh Schedule to the Constitution. By operation of
proviso to Article 254 of the Constitution, the Amendment Act 68 of 1984 is
made operative and it has occupied the same field w.e.f. September 24, 1984. In Gauri Shankar Gaur & Ors. v.
State of U.P. & Ors. [(1994) 1 SCC 92] this
Court surveyed the effect of the Amendment Act vis-a- vis the U.P. Awas Evan Vikas
Parishad Adhiniyam, 1965 and held in paragraphs 39 and 40 that unless both the
Acts are inconsistent and cannot operate harmoniously, the State Act prevails
over the Central Act but to the extent of repugnancy the State Act becomes void
since it is not fully consistent with the provisions of the Amendment Act. In
that case, it was held that they were intended to act independently since the
State law was enacted under Entries 56 and 66 of List II [State List] while the
Amendment Act was enacted under Entry 42 of the Concurrent List.
rigor of 40 days thereby under the Validation Act got diffused w.e.f. September 24, 1984 since it is inconsistent with
Amendment Act 68 of 1984. It would be seen that the Validation Act relates to
acquisition of the land for providing house sites to the poor thereunder the
urgency power under Section 17  was invoked and possession was not taken.
The notification under Section 4  and declaration under Section- 6 were
simultaneously published. But public notice of the substance of the
notification was not given simultaneously. But for the Full Bench decision, law
did not insist upon simultaneous action which was an impossibility and concept
of simultaneous action was judicial interpretation and its effect was diffused
by Validation Act. It is to remember that the acquisition was to provide
housing accommodation to the poor. The State Government always exercise the power
of publishing the notification under Section 4  and the declaration under
Section 6 for acquiring the properties in urban areas. The enquiry under
Section 5A was not dispensed with. The declaration under Section 6 was
published only after the enquiry under Section 5A had been conducted as in the
present case. The need, therefore, to make simultaneous local notice of the
substance was not the requirement of law and was not declared by this Court in
Deepak Pahwa's case [supra and also several decisions of various Division
Benches of the High Courts. The Full Bench judgment was primarily in relation
to the lands in rural areas to provide house sites to the poor. The Full Bench
also did not notice the distinction since common question was argued and the
main concentration was only of the acquisitions for providing house sites to
same was repeated in Mohd. Amri Khan's case [supra]. C.K. Narayana Chary's
cases [supra] closely followed the heels of Mohd Amri Khan's case. Therefore,
the Validation Act was not applicable to the acquisition made pursuant to the
notification published by the State Government in its State Gazette.
apart, as facts disclose, the award was made on November 24, 1980 and the writ
petition was filed on August 9, 1982. It is not in dispute that compensation
was deposited in the court of the Subordinate Judge. lt is asserted by the
appellant- Society that possession of the land was delivered to it and the land
had been divided and allotted to its members for construction of houses and
that construction of some houses had been commenced by the date the writ
petition was filed. It would be obvious that the question of division of the
properties among its members and allotment of the respective plots to them
would arise only after the Land Acquisition Officer had taken possession of the
acquired land and handed it over to the appellant-Society. By operation of
Section 16 the land stood vested in the State free from all encumbrances.
Prasad Jain & Ors. v. State of U.P. &Ors.[(1993) 4 SCC 369], the
question arose: whether notification under Section 4 and the declaration under
Section 6 get lapsed if the award is not made within two years as envisaged
under Section 11A? A Bench of three Judges had held that once possession was
taken and the land vested in the Government, title to the land so vested in the
State is subject only to determination of compensation and to pay the same to
the owner. Divesting the title to the land statutorily vested in the Government
and reverting the same to the owner is not contemplated under the Act. Only
Section 48(1) gives power to withdrew from acquisition that too before
possession is taken. That question did not arise in this case. The property
under acquisition having been vested in the appellants, in the absence of any
power under the Act to have The title of the appellants divested except by
exercise of the power under Section 48(1), valid title cannot be defeated. The
exercise of the power to quash the notification under Section 4(1) and the
declaration under Section 6 would lead to incongruity. Therefore, the High
Court under those circumstances would not have interfered with the acquisition
and quashed the notification and declaration under Sections 4 and 6
from either perspective, we are of the view that the High Court was wrong in
allowing the writ appeal.
the writ appeal stands dismissed and the order passed by the learned single
Judge in the writ petition stands restored. The appeal is accordingly allowed,
but, in the circumstances, without costs.
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