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Report No. 182

Amendment of Section 6 of the Land Acquisition Act, 1894

This Report is prepared for the purpose of removing the lacuna in section 6 of the Land Acquisition Act, 1894, which has come to light in view of the decision of the Constitution Bench of the Supreme Court of India in its recent judgment in Padmasundara Rao (dead) & Others v. State of Tamil Nadu & Others: JT 2002(3) SC page 1 dated 13.3.2002. The controversy which has arisen in regard to section 6 of the Act has been set out in the judgment of the Supreme Court as follows:

"The controversy involved lies within a narrow compass, that is, whether, after quashing of notification under section 6 of the Land Acquisition Act, 1894 (hereinafter referred to as the Act), fresh period of one year is available to the State Government to issue another notification under section 6."

Prior to this judgment, the decision in N.Narasimhaiah and others v. State of Karnataka 1996 (3) SCC 88 (three Judges Bench), held the field and provided a further period of one year from the date of the judgment of the court qualify the declaration under section 6(1), received by the Land 4 Acquisition Officer. It was held in that case that such a construction would subserve the public purpose and would save the validity by the earlier notification issued under section 4(1) of the Act. Otherwise, if a fresh notification under section 4(1) was to be issued, it could amount to going back to square one.

That would indeed defeat the main legislative purpose. The land acquisition proceedings, which were started, must be allowed to go on and the aggrieved parties be given the necessary opportunity to vindicate their grievances. There was no need to compel government to issue a fresh notification under section 4. This was what was held in Narasimhaiah case. However, in Padmasundara Rao's case supra, the Constitution Bench overruled Narasimhaiah judgment on the ground that fixing another period of one year from the date of judgment for making the section 6 declaration, would amount to legislation by judicial fiat.

The Supreme Court observed that courts can only interpret the law and cannot legislate and that if a provision of law is misused or subjected to abuse of process of law, it would be for the legislature to amend, modify or repeal the law. The court further held that the aforesaid view in Narasimhaiah's case (supra) could not be reconciled with the language used by the Parliament in section 6(1).

In order to meet the said objectives as set out in Narasimhaiah case, it is essential to bring certain amendments in section 6(1) of the Act. For the purpose of understanding this issue, it is necessary to briefly refer to the scheme of land acquisition under the Act and in particular to notification to be issued under section 4(1) of the Act and the declaration to be made under section 6 of the Act and to the history of time-limits mentioned in section 6 of the Act.

The Land acquisition Act, 1894 was enacted for the purpose of compulsorily acquiring of land required for public purpose or for purpose of companies and for determination of the amount of compensation to be paid on account of such acquisition. The Act contemplated that initially a notification would have to be issued under section 4(1) indicating the intention of the Government to acquire land or other property. The notification under section 4(1) has to be published in the official Gazette.

The 1984 Amendments require the section 4(1) notification to be also published in two local newspapers of which one at least should be in a regional language, in addition to the public notice of the substance of such notification which has to be made by the Collector at convenient places in the locality where the land is situate. Thus, there are three types of publications of section 4(1) notification. The date of the last of these publications and of such public notice is deemed to be the date of the notification under section 4(1). Compensation has to be paid on the basis of the market value as on the date of the notification under section 4(1).

After section 4(1) notification is issued, section 5A contemplates an inquiry into objections to be filed by those interested in the land or property. That section refers to filing of objections before the Collector, and he has to give an oral hearing and thereafter he has to submit a report to the concerned Government which issued section 4(1) notification, for taking further action. The procedure regarding hearing of objections can be dispensed with in case of urgency under section 17(4).

If the inquiry is not dispensed with and a report is given after the inquiry, the concerned Government has then to apply its mind independently and decide whether to confirm the acquisition and go 6 ahead. If it decides to go ahead, it has to make a declaration under section 6 of the Act. The said declaration will be conclusive proof of the public purpose. The declaration that is made under section 6 has to be published, as per a procedure which is similar to the procedure prescribed for publication of a notification under section 4(1).

Initially, under the Act of 1894, there were no time limits prescribed for the making of declaration under section 6 after the publication of the notification under section 4(1) of the Act. This led to unreasonable delays. In cases, where there was unreasonable delay in the making of the declaration under section 6 of the Act, the owner of the property was under a great disadvantage because the market value would have to be determined on the basis of the section 4(1) notification published several years earlier. Such unreasonable delays were criticized by the Supreme Court in State of MP v. Vishnu Prasad AIR 1966 SC 1593.

For the purpose of expediting the making of declarations under section 6, the Land Acquisition (Amendment and Validation) Ordinance, 1967 was promulgated. The Ordinance provided that no declaration under section 6 should be made [in respect of any particular land covered by the notification under section 4(1), published after the commencement of the Ordinance,] after expiry of three years from the date of such publication and in cases where notification under section 4(1) has been published before the commencement of this Ordinance, the declaration should not be made after the expiry of two years from the commencement of the Ordinance.

The Ordinance also provided that, if necessary, more than one declaration may be made from time to time in respect of different parcels of any land covered 7 by the same notification under section 4(1) of the Act. The provisions of the Ordinance were later on incorporated into the Amending Act, 1967 As stated above, the period of three years for making declaration under section 6 would apply to all notifications under section 4(1) to be issued after the Ordinance of 1967. The period of three years between section 4(1) notification and section 6 declaration was treated by Parliament as reasonable.

But, in 1984, Parliament felt that this period of three years between a notification under section 4(1) and the declaration under section 6 should be reduced to one year. Therefore, the 1984 Amendment provided that the section 6 declaration must be made within one year from the date of publication of the section 4(1) notification, where such notification under section 4(1) was published after the 1984 Amendment Act. In law, if section 6 declaration was not made within one year as provided by the 1984 Amendment, it would be invalid.

Once there was no valid section 6 declaration made within one year as aforesaid, the section 4(1) notification issued earlier would also lapse and the State would have to come forward with a fresh section 4(1) notification. May be, if the market value had increased between the date of earlier section 4(1) notification that has lapsed and the new section 4(1) notification that was issued, then the State would have to pay increased price for the lethargy of its officers and for their not making the section 6 declaration within one year of the section 4(1) notification.

The 1984 Amendment, while fixing a period of one year for making of the declaration under section 6 from the date of publication of a section 4(1) 8 notification, however, took care to see that those who went to Court and obtained stay orders did not deprive the State of the benefit of the full one year for taking the various steps necessary to reach the stage of declaration under section 6 - namely the holding of an inquiry under section 5A etc. It, therefore, inserted an Explanation below section 6(1) to the effect that if stay of any action or proceeding taken in pursuance of section 4(1) notification was obtained, the period covered by the stay orders could be excluded while computing the period of one year.



Amendment of Section 6 of the Land Acquisition Act, 1894 Back




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