Ghaziabad Development Ahuthority Vs. Jan Kaluan
Samiti, Sheopuri, Ghaziabad & Anr [1996] INSC 31 (9 January 1996)
Ramaswamy,
K.Ramaswamy, K.G.B. Pattanaik (J)
CITATION:
1996 AIR 1045 1996 SCC (2) 365 JT 1996 (1) 568 1996 SCALE (1)448
ACT:
HEAD NOTE:
O R D
E R
Leave
granted.
Though
notice has been served on the contesting respondents, they have not appeared
either in person or through counsel.
We
have heard Shri O.P. Rana, learned senior counsel for the petitioner. The
acquisition of the land by the Ghaziabad Development Authority was initiated by
notification of February
25, 1986, under
Section 4 (1) of the Land Acquisition Act, 1894 (for short, 'the Act'); enquiry
under Section 5A was dispensed with under Section 17(4) of the Act and the
Declaration under Section 6 was made on February 26, 1986. Both the notifications and
declaration were simultaneously published on April 10, 1986.
The
respondents 1 and 2 have filed writ petition No.7155/86 in the High Court of
Allahabad challenging the validity of the notification under Section 4(1) on
the ground that local publication as required under Section 4(1) was not made.
The exercise of the power under Section 17(4) was also wrongly invoked, as
simultaneously notification under Section 4(1) and declaration under Section 6
could not be published. The High Court accepted the contentions and by impugned
order dated November 3,
1987, allowed the writ
petition and quashed the notification of Section 4(1) and the declaration under
Section 6. Thus this appeal by special leave.
Section
4(1) of the Act envisages 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. This was added by
Amendment Act 68 of 1984. Earlier thereto under the local amendment of U.P.,
publication in one newspaper was sufficient. The Collector is required to cause
public notice of the substance of such notification to be given at convenient
places in the said locality. The State of UP made amendment to Section 4 by UP
Land Acquisition VIII of 1974/XXII of 1954, whereunder between the words
"and" and the word "Collector" the following shall be
inserted and be deemed always to have been inserted. The proviso thereto was
added as under:
"Except
in the case of any land to which by virtue of a direction of the State
Government under sub section 4 of Section 17 the provision of Section 5 A shall
not apply".
In
other words, the mandatory requirement of the publication of the notification
in the locality was dispensed with in a case where the Government had opined
that the land was urgently needed, under Section 17(4). When the authorities
have dispensed with the enquiry under Section 5A, the requirement of local
publication shall not apply.
Consequently,
the finding of the High Court is unsustainable. It is rather unfortunate that this
amendment was not brought to the notice of the High Court when the writ
petition was allowed. But operation of the statutory local amendment to the Act
has dispensed with local publication in two newspapers. The notification under
Section 4 [1] is not vitiated for non-publication of the notification in the
local newspapers.
The
next question is whether Section 17(4) applies and the action taken was
inconsistent with the provisions of the Act. It is seen that but for local
amendment, on publication of the notification under Section 4(1) and exercising
of the power under Section 17(4), the publication of the declaration under
Section 6 is mandatory pre-condition for taking possession of the land. Even on
publication of declaration under Section 6, notice under Section 9 is necessary
to the owner or person interested in the land and on expiry of 15 days from the
date of the notice under Section 9 the Government is entitled to take
possession of the land. By operation of Sub-section (2) of Section 17 though award
has not been made under Section 11 the land stands vested in the Government,
free from all encumbrances.
In the
State of UP an amendment has been made by UP Amendment Act repeal 32 of 1990
and the Land Acquisition [Validation] Act 1991, (UP Act 5 of 1991), which had
come into force w.e.f. September 24, 1984, envisaging insertion of a proviso to
sub-section (4) of Section 17 which reads thus:
"In
Section 17 of the Land Acquisition Act, 1894, as amended in its application to
Uttar Pradesh, hereinafter referred to as the principal Act, in sub-section (4)
the following proviso shall be inserted at the end and shall be deemed to have
been inserted on September 24, 1984, namely, Provided that where in the case of
any land, notification under Section 4, sub-section (1) has been published in
the Official Gazette on or after September 24, 1984 but before January 11, 1989
and the appropriate Government has under this sub-section directed that the
provisions of Section 5-A shall not apply, a declaration under Section 6 in
respect of the land may be made either simultaneously with or at any time after
the publication in the Official Gazette of the notification under Section 4,
sub-section (1)." In other words by operation of the proviso to Section
17(4) in relation to its application to the State of UP, Notification under
Section 4(1) and the declaration under Section 6 would simultaneously be
published. The appropriate Authority is empowered to issue notice under Section
9 and take possession on expiry of 15 days. The High Court, therefore, was not
correct in its conclusion that the Government would not have published
simultaneously the notification under Section 4(1) and the declaration under
Section 6 and immediately taken possession of the land in question.
In
that view of the matter, the decision of the High Court in the impugned
judgment is clearly illegal. The appeal is accordingly allowed, but in the
circumstances without costs.
Back
Pages: 1 2