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Judgment
H.N. Nagamohan Das, J.—In these writ petitions the Petitioners have prayed for a writ in the nature of certiorari to quash the preliminary notification dated 20.5.2002, the final notification dated 2.8.2003 acquiring the lands belonging to the Petitioners and the award dated 30.01.2005.
Petitioners contend that on 20.5.2002 the second Respondent issued a preliminary notification proposing to acquire the lands belonging to the Petitioners for the benefit of third Respondent-Agriculture Produce Marketing Committee (for short ''APMC''). To this preliminary notification Petitioners filed their objections opposing the acquisition of lands. Petitioners contend that they have developed nursery in their lands, vacant lands are available in the APMC Yard, Government land is available and there is no need for acquiring the lands belonging to the Petitioners. Without considering the objections the Respondents issued the impugned final notification dated 02.08.2003.
After the final notification the Petitioners approached the first Respondent - Government with a request to denotify the lands belonging to the Petitioners from acquisition. When the matter was pending consideration before the Government, the second Respondent passed an award on 30.1.2005 and the same came to be approved by the Government on 3.3.2005. Aggrieved by the impugned notifications and the award, Petitioners are before this Court.
Sri V. Lakshminarayan, learned Counsel for some of the Petitioners contend that in the existing market yard more than 25% of the land remained vacant and therefore there is no need to acquire the lands in question. Adjacent to the existing market yard, vacant government land is available and the Respondents without utilising the same proceeded to issue the impugned notification acquiring the lands belonging to the Petitioners and as such the same is bad in law. The paper publication in Kannada daily evening newspaper ''EE SANJE'' and non publication of the substance of notification in the Chavdi of the village is non-compliance of mandatory requirement u/s 4(1) of the Land Acquisition Act (for short ''Act''). No personal hearing was provided to the Petitioners by the Land Acquisition Officer and as such the enquiry u/s 5A of the Act is bad in law. Sri G.D. Aswathnarayana, learned Counsel for some of the Petitioners contend that the final notification u/s 6(1) of the Act was issued beyond statutory period of one year and as such the impugned notifications are liable to be quashed.
Sri B.G. Sridharan, learned senior counsel for the Respondent - APMC contend that the Petitioners participated in the enquiry proceedings, filed objections and some of the Petitioners engaged an Advocate and contested the matter before the Land Acquisition Officer. Therefore the Petitioners are not entitled to contend that the impugned notifications are bad in law. It is contended that pursuant to a direction issued by this Court on 4.12.2008, the Special Land Acquisition Officer filed a report with regard to the availability of the land in the existing market yard, the need to acquire the lands and also the non-availability of the Government land etc. In the circumstances, he justifies the impugned notifications and the award.
Heard arguments on both the side and perused the entire writ papers.
It is not in dispute that this Court vide order dated 4.12.2008 directed the Special Land Acquisition Officer to visit the spot and to submit a report. The Special Land Acquisition Officer in his report noticed the following points on which the report is to be submitted:
(a) To visit the APMC yard at Singena Agrahara in the presence of the: Petitioners and the Director of APMC and to record the objections of the Petitioners if any;
(b) To verify as to how far the acquired land has been utilised;
(c) Remaining extent of the land available out of 27 acres of land acquired earlier;
(d) How much land is required in addition to 27 acres of land already acquired?
(e) To verify as to whether any other Government land is available to establish and develop the proposed Market Yard.
In compliance of the directions issued by this Court the Special Land Acquisition Officer issued notices to both the parties, visited the spot and in the presence of the parties verified the factual situation with reference to the documents and filed a report with a sketch. In the report the Special Land Acquisition Officer observed as under:
(a) Totally 27 Acres 25 Guntas of land has been acquired for establishing the existing APMC yard.
(b) In addition to that, 2 Acres of land has been granted to APMC under NHM Scheme.
(c) Out of the 27 Acres 25 Guntas of acquired land, 21 acres and 05 Guntas of land has been utilised by constructing shops and for laying roads.
(d) 06 Acres and 20 Guntas of land is kept unutilised out of 27 Acres 25 Guntas.
(e) The sketch prepared by the Surveyor of the Office of Tahsildar, Anekal with regard to existing APMC Yard and the sketch/map of the proposed acquisition shows that Government land is not available for implimenting the proposed plan/scheme under the proposed acquisition.
(f) The material indicate that in the existing vacant land of 06 Acres 20 Guntas and 02 Acres of land given under NHM Scheme, there is proposal to construct Administrative Office, Bank, Canteen, Post Office, Fruits and Vegetable shops. Toilets, Refrigerated Godown. As the said vacant land is not sufficient for the present requirements and needs, the additional land is proposed to he acquired.
(g) The materials also indicate that 10% of the existing area of APMC would he acquired for widening of Hosur Road (High way). The materials also indicate that under the proposed construction of Metro Rail, the shops in City Market would be vacated and demolished and that the said shop owners have to be accommodated. Apart from the same for effective and useful management of the APMC Yard, it is necessary to provide space of selling Mangoes, cold storage facility, Refrigerated Go downs, Eradication Unit, Processing Unit, Parking Space, Raitha Bhavana, Grading and Packing Unit, Office for Association, Police Station, Health Centre, Commodity design Unit, place for Waste Management, Testing Certificate Unit, Online Commodity Centre, Karmikara Bhavana, Resting Room, etc.
In view of these, I find that the existing vacant land of 06 Acres 20 Guntas is not sufficient to carryout all the aforesaid activities and functions.
Under these circumstances, I am of the opinion that the entire extent of land now sought to be acquired for APMC is most essential to carry out and implement the aforesaid works.
Though learned Counsel for the Petitioners filed objections for some of the observations made by the Special Land Acquisition Officer in his report, the same is not substantiated by placing any acceptable evidence on record. On the other hand, the report of the Special Land Acquisition Officer is supported by a sketch and other documents. I have no reason to disbelieve the contents of the report. From the report it is seen that the vacant land available in the existing market yard is insufficient for further expansion of the market yard. It is also seen that there is need for expansion of the market yard. Adjacent to the existing market yard, no Government vacant land is available. Therefore, I reject the contention of the learned Counsel for the Petitioners and hold that there is need to acquire the land for the benefit of APMC and the same is a public purpose.
Section 4(1) of the Act reads as under:
Publication of preliminary notification and powers of officers thereupon.- (1) 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 and the Collector shall cause public notice of the substance of such notification to be given at convenient places in the said locality the last of the dates of such publication and the giving of such public notice, being hereinafter referred to as the date of the publication of the notification.
A reading of the above provision specifies three modes of publication of notification for acquisition and they are:
(i) In the Official Gazette
(ii) In two daily newspapers circulating in the locality and of which one shall be in the regional language
(iii) The substance of the notification at convenient places in the locality.
It is not in dispute that on 20.5.2002, the Government issued notification u/s 4(1) of the Act and the same was published in the Karnataka Official Gazette on 22.05.2002. Further it is not in dispute that Section 4(1) notification was published in Kannada daily ''KANNADA PRABHA'' newspaper on 24.5.2002 and in ''EE SAME'' Kannada daily evening edition on 25.5.2002. Learned Counsel for the Petitioners contend that the publication of notice in Kannada daily ''EE SANJE'' evening edition is not in compliance of the mandatory requirement u/s 4(1) of the Act and on this ground the impugned notifications are liable to be quashed. In support of this contention, reliance is placed on a judgment of this Court in Sri Venkatesh Vs. Sri P. Subbaiah and Another, wherein it is held as under:
In this regard the Courts cannot be oblivious of the fact that in several cases dubious methods are also adapted in order to secure ex-parte order and as such paper publication should be ordered with due care and also after being satisfied about the particular paper in which the paper publication is sought to be taken out. Here I must add a word of caution that the Courts should avoid permitting publication in all and sundry newspapers for the mere asking since such request is made only because it is cheaper to publish in such paper irrespective of its readership. At this juncture, it is appropriate to notice the contents of Order V Rule 20(1A), which reads as hereunder:
(1A) Where the Court acting under Sub-rule (1) orders service by an advertisement in a newspaper, the newspaper shall be a daily newspaper circulating in the locality in which the Defendant is last known to have actually and voluntarily resided, carried on business or personally worked for gain.
The word daily newspaper appearing in the provision should be understood to mean not only a newspaper which is circulated on all days of the week but it should be a newspaper of repute which is published as a morning edition with general acceptance to the satisfaction of the Court since the readership of certain papers even though published daily is an exception to the normal practice of reading a newspaper. The purpose of publication is that all concerned should see it, but if publication is permitted in certain evening editions and in newspaper which are not seriously taken, the object and purpose would not be served except for complying with an empty formality which only leads to multiplicity of proceedings
It is not in dispute that Kannada daily EE SANJE is a evening edition. No material is placed on record to show that this evening edition is having a popular circulation in the locality where the lands in question are situated. This evening edition is not a daily newspaper as specified in Section 4(1) of the Act and as per the law laid down by this Court in Sri Venkatesh''s case. On the other hand the publication in Kannada daily KANNADA PRABHA newspaper in vernacular language is partly in compliance of the requirement u/s 4(1) of the Act. Petitioners have not challenged this defect in issuing preliminary notification in evening edition at the earliest point of time. Subsequent to the notification, publication in the Karnataka Official Gazette and the newspaper as stated above, the Petitioners have filed their objections before the Land Acquisition Officer. Thus the Petitioners who are interested parties had the knowledge of preliminary notification issued u/s 4(1) of the Act. This is only a technical defect and on this ground, the acquisition proceedings cannot be quashed.
Learned Counsel for the Petitioners contend that the Respondents have failed to publish the substance of the preliminary notification in the Chavdi of the village. A perusal of the original records produced by the Land Acquisition Officer specifies that on 5.8.2002 the Revenue Inspector attached to the Office of Land Acquisition Officer had drawn the mahazar to the effect notifying the preliminary notification in the Chavdi of the Golimangala Village. To this mahazar the villagers have affixed their signatures. This material on record clearly establishes that Respondents have also complied the third mandatory requirement of Section 4(1) of the Act. Therefore, I decline to accept the contention of learned Counsel for the Petitioners that the substance of preliminary notification was not published in the Chavdi of the village.
Learned Counsel for the Petitioners contend that no personal hearing was provided to the Petitioners by the Land Acquisition Officer in the enquiry u/s 5A of the Act. In support of this contention reliance is placed on a judgment of the Supreme Court in Shri Farid Ahmed Abdul Samad and Another Vs. The Municipal Corporation of the City of Ahmedabad and Another, wherein it is held as under:
The heart of Section 5A of the Land Acquisition Act is the hearing of objections and under Sub-Section 2 of that Section a personal hearing is mandatorily provided for. Section 5A does not rest on a person''s demand for personal hearing. The matter may be different If a person whose property is acquired abandons the right to a personal hearing. Provision of appeal is also not a substitute for personal hearing provided for u/s 5A of the Land Acquisition Act.
It is seen from the records produced by the Land Acquisition Officer that subsequent to the preliminary notification, the Petitioners filed objections requesting to drop the acquisition proceedings. The Land Acquisition Officer held enquiry on 6.9.2002 adjourned to 12.9.2002. Since 12.9.2002 was a Bangalore Bandh, the enquiry was adjourned to 20.9.2002. There is no material to show that notices were served on the Petitioners intimating the date of hearing on 20.09.2002. Again enquiry was held on 23.9.2002 and on 23.12.2002. It is seen from the record that some of the Petitioners submitted their arguments by person and some of the Petitioners through their advocate. Some, of the Petitioners were not present on the hearing date. The Land Acquisition Officer considered the objections filed by the Petitioners. The non intimation of next hearing date subsequent to the Bangalore Bandh on 12.09.2002 is only a technical defect. On this ground acquisition proceedings can not be quashed.
Learned Counsel for the Petitioners contend that the Land Acquisition Officer failed to consider the objections filed by the Petitioners in his report submitted to the Government u/s 5A of the Act. In support of this contention learned Counsel for the Petitioners placed reliance on a judgment of the Supreme Court in the case of Hindustan Petroleum Corporation Limited v. Darius Shapur Chennai and Ors. (2005) 7 SCC 641. In the said decision, the Supreme Court held as under:
Section 5A of the Act is in two parts. Upon receipt of objections, the Collector is required to make such further enquiry as he may think necessary whereupon he must submit a report tot he appropriate Government in respect of the land which is the subject-matter of notification u/s 4(1) of the Act. The said report would also contain recommendations on the objections filed by the owner of the land. He is required to forward the records of the proceedings held by him together with the report. On receipt of such a report together with the records of the case, the Government is to render a decision thereupon. It is now well settled in view of a catena of decisions that the declaration made u/s 6 of the Act need not contain any reason. (See Kalumiya Karimmiya v. State of Gujarat and Delhi Admn. v. Gurdip Singh Uban).
I perused the objection statements filed by the Petitioners before the Land Acquisition Officer. From these objection statements it can be gathered that the Petitioners contended that they have no other land except the one now proposed to be acquire, they intend to start their own enterprise in the lands in question, vacant land is available in the existing market yard and the Government vacant lands are available. The report submitted by the Special Land Acquisition Officer pursuant to an order of this Court specifies that only small extent of vacant land is available in the existing market yard and no Government land is available adjacent to (he existing market yard. On the other hand the lands belonging to the Petitioners are adjacent to the existing market yard. The Land Acquisition Officer considered the objections filed by the Petitioners in his report submitted to the Government. The Government while issuing the final notification u/s 6(1) of the Act considered the objections filed by the Petitioners and the report submitted by the Land Acquisition Office:. The contention of the Petitioners that Land Acquisition Officer has not considered the objections in detail is only a technical defect and on that ground acquisition proceedings cannot be quashed. However Petitioners can be compensated on this count.
Learned Counsel for the Petitioners contend that the impugned final notification u/s 6(1) of the Act on 2.8.2003 was issued beyond one year period specified in that Section and therefore, the acquisition proceedings are liable to be quashed. I decline to accept this contention of learned Counsel for the Petitioners. It is seen from the record that on 20.5.2002 preliminary notification u/s 4(1) of the Act was notified. On 22.5.2002 the preliminary notification was published in the Karnataka Official Gazette. On 24.5.2002 the preliminary notification was published in Kannada daily newspaper KANNADA PRABHA and on 25.5.2002 in Kannada daily evening edition EE SANJE. Further it is seen that the substance of the preliminary notification was published in Chavdi of the village on 5.8.2002. While interpreting Section 4(1) and 6(1) of the Act, a Division Bench of Kerala High Court in M. Syed Mohammed Shafi and Others Vs. State of Kerala and Others, it is held as under:
Shri S. Venkitasubramania Iyer, learned Senior Counsel who argued for the Appellants contended that date of publication in the Official Gazette is the relevant date for counting both periods. For examining the correctness of the contention we may point out that all the three modes of publication prescribed need not necessarily be implemented on the same date. They can be done on three different dates as well. If so, the last date of such publication becomes the date of publication for certain purposes as could be noticed from Section 4(1) of the Act. The word "hereinafter" used in the last limb of that Sub-section is expected to convey the legislative intent that the period of one year envisaged in the first proviso to Section 6(1) of the Act, shall commence only from such last date of publication. The said proviso reads thus:
provided that no declaration in respect of any particular land covered by a notification u/s 4, Sub-section (1)...shall be made after the expiry of one year from the date of notification,
Similarly, the stipulation contained in the parenthetical clause in Section 6(2) is intended to apply to the period of two years envisaged in Section 11A of the Act. As the word "hereinafter" is again used in the said clause, the last date of publication of the Declaration is the date for reckoning the interval period of two years between Declaration and Award. If the legislative intent was otherwise we find no reason why the Parliament again used the word "hereinafter" in the Second Proviso to Section 6(2) also. Parliament could have instead used the word "hereinbefore" if it had the contrary intention.
I am in respectful agreement with the law declared by the Kerala High Court in M. Syed Mohammed Shaft''s case and therefore the last date of publication in the Chavdi on 5.8.2002 is to be taken into consideration for the purpose of computing the period of one year specified in Section 6(1) of the Act. It is not in dispute that the final notification u/s 6(1) of the Act was issued on 2.8.2003. Therefore, the final notification issued on 2.8.2003 is within the period of one year from the date of preliminary notification published in the Chavdi of the village on 5.8.2002. Therefore, the contention of learned Counsel for the Petitioners that there is delay in issuing final notification is hereby rejected.
The defect in publishing the preliminary notification in Kannada daily EE SANJE evening edition, not serving personal notice on some of the Petitioners u/s 5A enquiry after Bangalore bundh day on 12.09.2002 and the non-consideration of the objections filed by the Petitioners in detail by the Land Acquisition Officer in his 5-A enquiry report may be grounds for quashing the impugned notifications. If the impugned notifications are quashed, the same is not a legal impediment for the Respondents to initiate fresh acquisition proceedings and in that event the Respondents may require to pay the present market value as compensation. In identical circumstances, the Supreme Court in the case of Competent Authority Vs. Barangore Jute Factory and Others, held as under:
Having held that the impugned notification regarding acquisition of land is invalid because it fails to meet the statutory requirements and also having found that taking possession of the land of the writ Petitioners in the present case in pursuance of the said notification was not in accordance with law, the question arises as to what relief can he granted to the Petitioners. The High Court rightly observed that the acquisition of land in the present case was for a period of great national importance i.e. the construction of a national highway. The construction of a national highway on the acquired land has already been completed as informed to us during the course of hearing. No useful purpose will be served by quashing the impugned notification at this stage. We cannot be unmindful of the legal position that the acquiring authority can always issue a fresh notification for acquisition of the land in the event of the impugned notification being quashed. The consequence of this will only he that keeping in view the rising trend in prices of land, the amount of compensation payable to the landowners may he more. Therefore, the ultimate question will he about the quantum of compensation payable to the landowners. Quashing of the notification at this stage will give rise to several difficulties and practical problems. Balancing the rights of the Petitioners as against the problems involved in quashing the impugned notification, we are of the view that a better course will be to compensate the landowners, that is, the writ Petitioners appropriately for what they have been deprived of. Interests of justice persuade us to adopt this course of action.
Normally, compensation is determined as per the market price of land on the date of issuance of the notification regarding acquisition of land. There are precedents by way of judgments of this Court where in similar situations instead of quashing the impugned notification, this Court shifted the date of the notification so that the landowners are adequately compensated. In that direction the next step is what should he the crucial date in the facts of the present case for determining the quantum of compensation We feel that the relevant date in the present case ought to be the date when possession of the land was taken by the Respondents from the writ Petitioners. This date admittedly is 19.02.2003. We, therefore, direct that compensation payable to the writ Petitioners be determined as on 19.02.2003, the date on which they were deprived of possession of their lands. We do not quash the impugned notification in order not to disturb what has already taken place by way of use of the acquired land for construction of the national highway. We direct that the compensation for the acquired land he determined as on 19.02.2003 expeditiously and within ten weeks from today and the amount of compensation so determined, be paid to the writ Petitioners after adjusting the amount already paid by way of compensation within eight weeks thereafter. The claim of interest on the amount of compensation so determined is to be decided in accordance with law by the appropriate authority. We express no opinion about other statutory rights, if any, available to the parties in this behalf and the parties will he free to exercise the same, if available. The compensation as determined by us under this order along with other benefits, which the Respondents give to parties whose lands are acquired under the Act, should be given to the writ Petitioners along with what has been directed by us in this judgment.
In view of the law declared by the Apex Court in the judgment referred to supra, I am of the considered opinion that instead of quashing the acquisition proceedings, compensating the Petitioners with all consequential benefits on the basis of market value prevailing as on today will meet the ends of justice. In the circumstances the impugned award passed by the Land Acquisition Officer on 30.01.2005 is liable to be quashed.
For the reasons; stated above, the following;
ORDER
i. Writ petitions are partly allowed.
ii. The Writ Petitions in so for as it relates to quashing of preliminary notification dated 20.05.2002 and the final notification dated 02.08.2003 are hereby dismissed.
iii. The impugned award dated 30.0.1.2005 is hereby quashed.
iv. The Land Acquisition Officer is hereby directed to pass a fresh award by taking into consideration the market value of the lands in question as on today v. If the Petitioners are dissatisfied with the compensation to be determined by the Land Acquisition Officer, it is open for them to seek enhancement of compensation as per law. Ordered accordingly.