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Judgment
HON'BLE MR. JUSTICE ANAND SHARMA
By way of filing this writ petition, the petitioner, Sohan Lal has laid challenge to notification dated 15.09.1994 issued under Section 4 of the Land Acquisition Act, 1894 (hereinafter to be referred as ‘the Act of 1894’), as well as declaration dated 24.08.1995 issued under Section 6 thereof and published in official Gazette on 31.08.1995.
The petitioner has come out with a case that he purchased one plot measuring 1,000 square yards comprised in Khasra Number 90 situated at Village Roopwas, Tehsil Niwai, District Tonk, vide registered sale deed dated 16.02.1993. After purchasing the aforesaid plot, the petitioner raised construction of residential house as well as shops over the aforesaid plot, where he is not only residing with his family, but also carrying out business over the aforesaid plot. Total construction raised by the petitioner at the aforesaid plot is measuring around 2,000 square feet. It is submitted that one notification under Section 4 of the Act of 1894 was issued by the respondents on 15.09.1994 for the purpose of expansion of industrial area by Rajasthan State Industrial Development and Investment Corporation Limited (hereinafter to be referred as ‘RIICO’), whereby, total 371.05 Bighas land was sought to be acquired. It is stated in the writ petition that prior to purchase of plot vide registered sale deed dated 16.02.1993, the subject land was converted by the Tehsildar Niwai from agricultural to Abadi land and thereafter, it was sold by the erstwhile khatedar Mangilal to the petitioner. It is stated that although the land was purchased by the petitioner vide registered sale deed and as such, on account of registration of sale deed, the respondents were having knowledge with regard to said transaction, yet in notification dated 15.09.1994, the land situated over Khasra No. 90, measuring 1 Bigha 8 Biswa has been shown to be Barani land and name of khatedar has been shown as Mangilal son of Harbaksh. Thus, not only nature of the land has wrongly been shown, name of the petitioner was also not mentioned in the notification. Consequently, the petitioner was not aware of the acquisition proceedings.
It is the case of the petitioner that the aforesaid notification under Section 4 of the Act of 1894 was neither published in newspapers, nor public notice thereof was affixed at conspicuous places of the locality. Thus, there was no means available to the petitioner to have knowledge of issuance of notification dated 15.09.1994 issued under section 4 of the Act of 1894.
It is stated that on the same day, that is, on 15.09.1994, one another notification under Section 17(2) read with Section 4(1) of the Act of 1894 was issued and notice thereof was sent to erstwhile khatedar Mangilal son of Harbaksh and not to the petitioner. Aforesaid notification dated 15.09.1994 (Annexure-6) was never published in Official Gazette and although there is provision for providing 30 days' time from the date of last publication of notification under Section 4 of the Act of 1894 to the persons interested for filing objections against the intended acquisition, yet vide notification dated 15.09.1994 issued under section 17(2) of the Act of 1894, merely 15 days' time was granted for filing objections, which, as per the petitioner, is violation of mandatory provisions of the Act of 1894.
It is stated that on account of lack of knowledge, no objection could be filed by the petitioner against notification issued under Section 4 of the Act of 1894. Thereafter, declaration under Section 6 of the Act of 1894 was issued on 24.08.1994 and the same was published in Official Gazette on 31.08.1995. However, again the said declaration was neither published in the locality, nor in the newspapers. It is stated that later on intimation was given by Mangilal to the petitioner with regard to acquisition proceedings and the petitioner tried to inspect the record, yet on the pretext that the record has been sent to the Government, the Land Acquisition Officer did not provide any information to the petitioner. The petitioner has also stated that thus the proceedings have been undertaken without affording any opportunity of hearing to the petitioner and on account of there being no notice to the petitioner as well as absence of publication of notification as per the requirement of Section 4 of the Act of 1894, the petitioner was deprived of submitting objections against notification which has caused serious prejudice to the petitioner.
It is submitted that the respondents have also discriminated in carrying out impugned acquisition proceedings, as one similarly situated person, Jagdish Prasad Sharma, who was khatedar of land bearing Khasra No. 114/1 and having petrol pump and houses over the agricultural land, was benefited by excluding his land from acquisition and similarly, later on, land bearing Khasra No. 93 and 95 was also left from acquisition, yet similar benefit was not extended to the petitioner.
During the pendency of the writ petition, award was passed by the Land Acquisition Officer on 19.08.1996. After enforcement of the Right to Fair Compensation, Transparency in Land Acquisition, Rehabilitation and Resettlement Act, 2013 (hereinafter to be referred as ‘the Act of 2013’), an amendment was incorporated by the petitioner in memo of writ petition, whereby it was alleged that as the compensation has not been given to the petitioner, therefore, in view of the fact that the award was passed more than five years before the date of enforcement of the Act of 2013, i.e., 01.01.2014, by virtue of Section 24 of the Act of 2013, the acquisition proceedings have lapsed.
Reply to the writ petition has been filed by Respondent No. 1 and 2, wherein it was mentioned that since mutation was not opened in favour of the petitioner, despite sale of property in his favour, therefore, the petitioner's name was not reflected in notification under Section 6 of the Act of 1894 issued by the respondents. It was also submitted that individual notice vide letter dated 08.11.1994 was issued to the erstwhile khatedar Mangilal, whereby 15 days' time was granted to him to file objections. It is also stated that information with regard to sale of 1,000 square meter land to the petitioner came into the knowledge of Respondent No. 2 only on 30.09.1995. It was denied that the notification issued under Section 4 of the Act of 1894 was not published in newspapers and it was specified that the notification was published in two daily newspapers, namely, Dainik Lahron Ki Barkaha, Ajmer Edition and Dainik Khamos, Tonk Edition.
Respondent No. 3 also filed reply to writ petition reiterating therein that notification dated 15.09.1994 issued under Section 4 of the Act of 1894 was published in Official Gazette on 17.09.1994 as well as in two local newspapers, namely Dainik Lahron Ki Barkaha, Ajmer Edition and Dainik Khamos, Tonk Edition. It was submitted that on account of judgment of the Hon'ble Supreme Court, number of industries were asked to shift out of Delhi. Therefore, looking to the urgency, provisions of section 17(2) of the Act of 1894 were invoked by the respondents. Thereafter, declaration under Section 6 of the Act of 1894 was issued on 24.08.1995, which was followed by award which was sent to the Government on 29.02.1996 for approval and the same was approved by the Government on 05.08.1996 and declaration of final award was made by the Land Acquisition Officer on 19.08.1996. It is submitted that the land acquisition proceedings have been conducted in accordance with law and the writ petition filed by the petitioner is misconceived.
Rejoinder to reply was filed by the petitioner wherein it was stated that no public notice was ever affixed in the locality and so far as publication of notification under Section 4 of the Act of 1894 in daily newspapers, namely Dainik Lahron Ki Barkaha, Ajmer Edition and Dainik Khamos, Tonk Edition is concerned, it was submitted that such newspapers are totally unknown, having no circulation whatsoever in Niwai. In support of such contention, affidavit of Shri Nand Kishore Jaisawal, newspaper merchant of the concerned area, was submitted by the petitioner, who deposed that he has never heard about such newspapers, namely Dainik Lahron Ki Barkaha, Ajmer Edition and Dainik Khamos, Tonk Edition and such newspapers have got no circulation in the locality.
In rejoinder, it was also pointed out by the petitioner that although in reply the respondents have referred two newspapers, namely Dainik Lahron Ki Barkaha, Ajmer Edition and Dainik Khamos, Tonk Edition, yet such statement is contradictory to award dated 19.08.1996, in which it has been mentioned that notification under Section 4 of the Act of 1894 was published in newspaper Dainik Taj Bharti and even such newspaper has got no circulation in the locality. It was also submitted that since writ petition was filed by the petitioner prior to passing of award and mandatory provisions of the Act of 1894 have not been complied with, therefore, the acquisition proceedings have vitiated and award based thereupon is also a nullity.
This is a matter of record that earlier, writ petition filed by the petitioner was dismissed by the Co-ordinate Bench of this Court vide order dated 16.08.1999, after taking note of the fact that award has already been passed in the year 1996. Feeling aggrieved by order dated 16.08.1999, the petitioner preferred D.B. Civil Special Appeal (Writ) No. 89/2000, which was allowed by the Division Bench of this Court vide judgment dated 29.07.2008 and the matter was remitted back to the Single Judge for hearing afresh. Thereafter, the matter was taken up by the Co-ordinate Bench and after hearing both the parties on 20.11.2008, the writ petition was admitted to be finally heard in due course and interim order with regard to status quo earlier granted on 17.09.1996 was directed to be continued. Thereafter, in the light of directions given by Co-ordinate Benches of this Court from time to time, different additional affidavits were filed from either side. On 25.09.2009, affidavit was filed by Regional Manager of Respondent No. 3 mentioning therein that after passing award dated 19.08.1996, possession of land measuring 348 Bighas 8 Biswas out of total 371 Bighas 5 Biswas was taken by the respondents on 19.08.1996. It was also submitted that compensation qua the land in question measuring 8 Biswas and construction thereon has been assessed to Rs. 3,30,959/-. However, the same has neither been accepted by the erstwhile Khatedar Mangilal, nor by the present petitioner. It was also informed in the affidavit on behalf of respondent-RIICO that on acquired land, total 281 industrial plots have been chalked out, out of which 250 plots have already been allotted to various entrepreneurs. In 81 plots, units have already started production and 62 units are under construction. Rest 31 plots could not be allotted due to dispute regarding possession/compensation.
One another additional affidavit dated 23.04.2024 was filed by the Additional Officer-in-Charge of Respondent-RIICO, mentioning therein that since cheque pursuant to land acquisition award was prepared and offered to the erstwhile khatedar, who never accepted the same, therefore, it would be termed as legal tender of compensation and since there is already interim order operating in the instant writ petition, therefore, in view of judgment of the Hon'ble Supreme Court in Indore Development Authority vs. Manoharlal & Others, (2020) 8 SCC 129, the provisions of Section 24 of the Act of 2013 shall not be attracted in the present matter.
Counter to the affidavit was filed by the petitioner mentioning therein that the petitioner has raised construction over the land in question and he is having possession thereof. Hence, it was denied that the possession of the land in question was taken by the respondents and compensation in lieu of acquisition of land in question was also never offered to the petitioner by the respondents.
Later on, on 29.11.2024, yet another additional affidavit was filed by Respondent No. 3, mentioning therein that information with regard to details of publication of notification under section 4 of the Act of 1894 was required by the State Government, vide letter dated 07.08.1995, and thereupon the Land Acquisition Officer responded vide letter dated 24.08.1995 by informing the State Government that notification under section 4 of the Act of 1894 was published in two daily newspapers, namely Dainik Taj Bharti dated 15.12.1994 and Dainik Khamos dated 14.12.1994. It was also mentioned that relevant extract of the notification was also affixed in the locality on 07.11.1994 and compliance thereof was made by 22.11.1994.
Thereafter, one more additional affidavit was filed on behalf of Respondent No. 3, in which it was reiterated that the Land Acquisition Officer had already informed the State Government with regard to publication of notification under Section 4 of the Act of 1894 in Dainik Taj Bharti dated 15.12.1994 and Dainik Khamos dated 14.12.1994. It is also submitted that thereafter one more letter was written on 12.07.1996, wherein it was submitted that declaration under Section 6 of the Act of 1894 was published in Dainik Khamos on 03.11.1995 and Dainik Lahron Ki Barkaha on 07.11.1995. This Court also finds that one application under Article 226 of the Constitution of India was also filed by the respondent-RIICO, whereby, the fact was brought on record that the award was passed on 19.08.1996 and pursuant thereto, although possession of the land in question was taken by the Land Acquisition Officer on 11.12.1996, yet on account of litigation, possession of the land in question bearing Khasra No. 90 could not be taken. It was also informed that so far as compensation is concerned, cheque of Rs. 3,30,959/- dated 01.07.2021 has been deposited with the District and Sessions Judge, which is the competent authority.
Mr. Anil Mehta, learned Senior Counsel appearing on behalf of the petitioners, while reiterating the contents of writ petition, argued that in the present matter, the respondents have flouted mandatory provisions of Section 4 of the Act of 1894. It is submitted that three modes of publication of notification under Section 4 of the Act of 1894 have been given, which are, (i) publication in Official Gazette; (ii) publication in two daily newspapers having circulation in the locality, out of which at least one shall be in regional language and (iii) Collector (Land Acquisition Officer) shall cause public notice of the substance of such notification at convenient places in the said locality. Learned Senior Counsel submitted that the respondents have not followed the above provisions in the manner that no public notice was ever affixed in the locality and so far as publication of the notification in newspapers is concerned, such publication cannot be said to be a publication in true spirit of the provisions of Section 4 of the Act of 1894, which makes it quite clear that the publication should be in the newspapers having circulation in the locality. Initially, although in reply, the respondents have submitted that the notification under Section 4 of the Act of 1894 was published in Dainik Lahron Ki Barkaha, Ajmer Edition and Dainik Khamos, Tonk Edition respectively. However, in award, the statement is contradictory where instead of name of newspaper Dainik Lahron Ki Barkaha, name of another newspaper Dainik Taj Bharti has been given. In the letters enclosed along with the additional affidavits also, names of newspapers in which alleged publication has taken place are different from the contents of reply to the writ petition.
Learned Senior Counsel appearing on behalf of the petitioners further submitted that the respondents have deliberately withheld production of such newspapers before this Court and none of the newspapers or copy thereof has been enclosed either with the reply or additional affidavits. Learned Senior Counsel also contended that provisions of the Act of 1894 are mandatory in nature and the procedure for publication of notification as given under Section 4 of the Act of 1894 cannot be treated as an empty formality. Hence, when Section 4 of the Act of 1894 specifically provides for publication of the notification in newspapers having circulation in locality, then the respondents are required to demonstrate that alleged newspapers in which notification is said to have been published, were having any circulation whatsoever in the locality. However, the respondents have utterly failed to place any material in this regard, whereas the petitioner has filed affidavit of the newspaper merchant of Niwai so as to prove that even the newspaper merchant had never heard names of newspaper Dainik Lahron Ki Barkaha and Dainik Khamos. Resultantly, there is no question of such newspapers having any circulation whatsoever in the locality. Thus, in quite malicious manner, if at all any publication in newspaper has taken place, (though it is emphatically disputed by learned Senior Counsel appearing on behalf of the petitioners), publication in totally strange and unknown newspapers cannot be said to be sufficient compliance of the provisions of Section 4 of the Act of 1894.
It is settled proposition of law that non-compliance of provisions with regard to publication of notification as contemplated under Section 4 of the Act of 1894 vitiates the entire acquisition proceedings.
Learned Senior Counsel further submitted that sole object of giving a wide publicity of notification under Section 4 of the Act of 1894 is that all the persons interested should be made aware of the fact that their land is likely to be acquired for alleged public purpose by the State Government. Hence, the provisions have been given under the Act of 1894 for publishing the notification in three different modes. It is submitted that a layman cannot be expected to have knowledge of publication of notification in official Gazette and he/she is supposed to have knowledge thereof only by way of publication of notification in newspapers having wide circulation in the locality or by way of affixation of extract of notification at convenient places in the locality. In the instant case, the last two modes have not been complied with by the respondents, which has deprived the petitioner of knowledge of acquisition proceedings.
Mr. Anil Mehta, learned Senior Counsel submitted that land in question was purchased by the petitioner vide registered sale deed dated 16.02.1993 and much earlier thereto, agricultural land was converted by the competent authority as Abadi land. Such facts were duly recorded in the official record of respondents authorities, yet while issuing notification under Section 4 of the Act of 1894, name of petitioner was not reflected therein and even the nature of the land was shown as Barani instead of Abadi. Thus, the petitioner was having no means of knowledge with regard to proposed acquisition of land.
Learned Senior Counsel further submitted that in the light of above, the petitioner could not exercise his right to submit objection against proposed acquisition and under such circumstances where after purchase of the land, the petitioner had already raised substantial construction of residential house and shops over the land, as well as in view of the fact that in similar circumstances, lands of other khatedars, namely Jagdish Prasad Sharma and others was left out from acquisition, the petitioner was deprived of filing any such objections before the Land Acquisition Officer under Section 5A of the Act of 1894, which is the minimal right prescribed under the Act of 1894 to the land owners. Thus, in the instant case, acquisition proceedings have been carried out by the respondents in flagrant violation of provisions of the Act of 1894 as well as Article 300A of the Constitution of India.
Learned Senior Counsel appearing on behalf of the petitioner further submitted that the respondents have admitted in their reply that erstwhile khatedar Mangilal had already informed them that he had sold the land in question to the petitioner and as per the respondents, such information was given to them after expiry of prescribed period for hearing of objections, yet the same was given prior to issuance of declaration under Section 6 of the Act of 1894, even then the respondents did not rectify their mistake earlier committed by them and in declaration under Section 6 of the Act of 1894, instead of reflecting name of the petitioner, name of erstwhile khatedar Mangilal was reflected and despite there being order of status quo passed by this Court on 17.09.1996, award was passed by the respondents on 19.08.1996, again in the name of erstwhile khatedar Mangilal.
Learned Senior Counsel further contended that the respondents have admitted the fact that possession of the land in question is still with the petitioner and under such circumstances, where more than 30 years have passed, no fruitful purpose is likely to be achieved by acquiring the land of the petitioner. Learned Senior Counsel also submitted that under the circumstances where the petitioner has already approached this Court much before passing of the award, merely on account of the fact that during the pendency of writ petition, award has been passed, in the circumstances where the initial notification under Section 4 of the Act of 1894 is a nullity, in view of the grounds raised hereinabove, the award would not confer any validity upon such void proceedings. It is submitted that award is nothing but determination of compensation consequent upon initial notifications issued under Sections 4 and 6 of the Act of 1894. Therefore, rights of the petitioner cannot be taken away by the respondents by making a statement that award has been passed by the respondents. In support of his submissions, learned Senior Counsel relied upon the decisions of the Hon'ble Supreme Court, in the cases of Khub Chand & Others vs. State of Rajasthan & Others, 1966 SCC OnLine SC 113; State of Mysore vs. Abdul Razak Sahib, (1973) 3 SCC 196; Narindrajit Singh & Ranjit Singh & Others vs. The State of U.P. & Others, (1973) 1 SCC 157; Kulsum R. Nadiadwala vs. State of Maharashtra & Others, (2012) 6 SCC 348; V.K.M. Kattha Industries Private Limited vs. State of Haryana & Others, (2013) 9 SCC 338; Collector (District Magistrate) Allahabad & Another vs. Raja Ram Jaiswal, (1985) 3 SCC 1; J&K Housing Board & Another vs. Kunwar Sanjay Krishan Kaul & Others, (2011) 10 SCC 714; Union of India & Others vs. Gopaldas Bhagwan Das & Others, (2023) 12 SCC 531; Hindustan Petroleum Corpn. Ltd. vs. Darius Shapur Chenai & Others, (2005) 7 SCC 627; Talson Real Estate (P) Ltd. vs. State of Maharashtra & Others, (2007) 13 SCC 186; and decision of Division Bench of Jammu & Kashmir High Court in Mohd. Abdullah Chowdhary vs. State of J&K & Others 2021, SCC OnLine J&K 304.
Per contra, learned counsel for the respondents opposed the writ petition and submitted that nothing has been shown by the petitioner that he ever made any attempt for getting mutation opened in his name after purchase of the land in question from erstwhile khatedar Mangilal. It is submitted that the respondents have complied with all the requirements of publication of notification under section 4 of the Act of 1894. The notification has been published in the newspapers and public notice thereof was also given in the locality. Therefore, it cannot be said that the respondents have flouted the provisions of the Act of 1894.
It is also submitted that vide letter dated 08.11.1994, notice was given to erstwhile khatedar Mangilal with regard to notification under Section 4 read with Section 17(2) of the Act of 1894 and since there was an urgency on account of there being a likelihood of shifting of industries from Delhi to Rajasthan, the recourse provided under Section 17(2) of the Act of 1894 were undertaken. Thus, information was given well in time by the respondents to the erstwhile khatedar as per the available record and it cannot be said that the respondents have withheld information with regard to the acquisition of the land in question.
It has also been submitted that award is culmination of acquisition proceedings and since in the instant writ petition, award has not been challenged by the petitioner, therefore, no relief whatsoever can be granted. It is submitted that so far as possession is concerned, the respondents could not take possession of the land in question on account of interim order passed by this Court, whereas most of the area of land under acquisition has already been taken in possession by the respondents whereupon industries have also been set up. Under these circumstances, leaving a small portion of land held by the petitioner would create hurdles in smooth functioning of rest industrial area.
It is submitted that so far as compensation is concerned, since it was not accepted either by the petitioner or by the erstwhile khatedar, therefore, the respondents have deposited the same with the Civil Court in the year 2021, which can be said to be competent authority. Learned counsel for the respondents submitted that in view of above, provisions of Section 24 of the Act of 2013 cannot be pressed into service by the petitioner in the light of judgment of the Hon'ble Supreme Court in the case of Indore Development Authority (supra).
This Court has given its anxious consideration to the rival submissions advanced by learned counsel for the parties and meticulously examined the material available on record.
During the course of arguments, on account of the fact that stay order is operating in the instant writ petition restraining the respondents from taking possession of land in question, ground with regard to lapse of proceedings under Section 24 of the Act of 2013 was not pressed by learned counsel for the petitioner, hence, the aforesaid ground is not being examined on merits.
The principal ground of challenge to the acquisition proceedings, as raised by the petitioner, is with regard to non-compliance with the mandatory procedure contemplated under Section 4 of the Act of 1894. Therefore, for the sake of convenience, the provisions of Section 4 of the Act of 1894 are reproduced hereunder:
“4. 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 3[{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}].
(2)Thereupon it shall be lawful for any officer, either, generally or specially authorised by such Government in this behalf, and for his servants and workmen, to enter upon and survey and take levels of any land in such locality; to dig or bore in the sub-soil; to do all other acts necessary to ascertain whether the land is adapted for such purpose; to set out the boundaries of the land proposed to be taken and the intended line of the work {if any} proposed to be made thereon; to mark such levels, boundaries and line by placing marks and cutting trenches; and, where otherwise the survey cannot be completed and the levels taken and the boundaries and line marked, to cut down and clear away any part of any standing crops, fence or jungle:
Provided that no person shall enter into any building or upon any enclosed court or garden attached to a dwelling-house {unless with the consent of the occupier thereof} without previously giving such occupier at least seven days’ notice in writing of his intention to do so.”
It is settled proposition of law that the Land Acquisition Act is an expropriatory legislation and, therefore, the provisions thereof are required to be construed strictly. The Hon’ble Supreme Court has reiterated this principle time and again, including in the case of Hindustan Petroleum Corpn. Ltd. vs. Darius Shapur Chenai & Others (supra).
Bare perusal of provisions of Section 4 of the Act of 1894 would make it clear that the legislature in its wisdom has prescribed three different modes of publication of notification under Section 4 of the Act of 1894. The purpose of giving wide publicity to notification under Section 4 of the Act of 1894 is absolutely clear. Notification under Section 4 of the Act of 1894 is the initial step whereby the State Government raises its intention to acquire a land notified in the notification. Therefore, in order to follow a fair and transparent procedure, the sole object is to apprise the public at large with regard to public purpose for which land is intended to be acquired and the landowners whose lands are intended to be acquired should be made aware of the proposed acquisition so that if they have got any objection to object public purpose or to seek an exemption from acquisition by showing justified reasons, they may file objections under Section 5A of the Act of 1894. Such purpose is quite akin to well-known principle of natural justice, namely, audi alteram partem. Thus, the Government is under an obligation to provide due opportunity of hearing to the landowners before expropriating their lands under compulsory acquisition process.
In view of above, this Court finds that the procedure provided under Section 4 of the Act of 1894 cannot be treated as an empty ritual by the State Government and the same is required to be followed strictly. The expression used by the Legislature is not mere ‘publication in newspaper’, but quite consciously Section 4 of the Act of 1894 provides for ‘publication in newspapers having circulation in the locality’. Thus, the Government cannot be allowed to carry out an empty formality by publishing the notification in any of the newspapers of its choice. While making such publication, it is also bounden duty of the State Government to satisfy that the newspapers which were chosen for publication of the notification are having sufficient circulation in the locality.
While examining the record of the present case, this Court finds that the stand taken by the respondents is surprisingly contradictory. In initial reply to the writ petition, notification under Section 4 of the Act of 1894 was stated to be published in daily newspapers, i.e., Dainik Lahron Ki Barkaha and Dainik Khamos, whereas in the award passed under Section 11 of the Act of 1894, as well as in subsequent additional affidavits filed by the respondents, names of newspapers were disclosed as Dainik Taj Bharti and Dainik Khamos. Such variation is quite material and has not been explained by the respondents either in their reply or in subsequent additional affidavits.
Apart from above, when objection with regard to statement made by the respondents qua the names of newspapers was specifically raised, then in order to show their bona fides, the respondents were required to discharge their onus by placing newspapers or copies thereof on record. This Court finds that despite there being objection taken by the petitioner, either original newspapers or copies thereof were not produced by the respondents before this Court so as to satisfy that notification under section 4 of the Act of 1894 was actually published by them in the newspapers.
The respondents have utterly failed to satisfy this Court with regard to circulation of alleged newspapers, namely, Dainik Lahron Ki Barkaha, Dainik Khamos and Dainik Taj Bharti in the locality. In reply to the writ petition, the respondents have stated that one of the newspapers is circulated in Ajmer, whereas another is circulated in Tonk. In the instant case, the land, which is sought to be acquired, is situated in a small town, namely, Niwai. No iota of evidence whatsoever has been placed on record by the respondents to show that the alleged newspapers were having any circulation whatsoever in Niwai. On the contrary, to refute the contention of the respondents, the petitioner has filed affidavit of Shri Nand Kishore Jaisawal, newspaper merchant of Niwai, who showed his total ignorance with regard to even existence of above newspapers. Hence, there was no material on record to assume any circulation of such newspapers in the locality.
In Special Duty Collector, Land Acquisition, C.M.D.A. vs. J. Sivaprakasam & Others, (2011) 1 SCC 330, the Hon’ble Supreme Court has observed that the publication of a notification under Section 4 of the Act of 1894 serves twofold purpose. Firstly, it is intended to ensure adequate publicity so that the landowners and persons interested in the land have an effective opportunity to file their objections under Section 5A of the Act of 1894. Secondly, it is intended to put the landowners and occupants on notice that the Government officers may enter upon the property for carrying out the activities enumerated under Section 4(2) of the Act of 1894. Having regard to the aforesaid object and purpose of the statutory requirement, the Hon’ble Supreme Court has held that the notification must necessarily be published in newspapers having reasonably good circulation in the locality. It has further been held that where there is failure to publish the notification in two daily newspapers, or where the publication is made in two newspapers having no circulation at all in the locality, notification under Section 4 of the Act of 1894 and the consequential acquisition proceedings would stand vitiated on account of non-compliance with an essential statutory requirement. Following pertinent observations of the aforesaid judgment are reproduced hereunder:
“16.On the contentions raised, two questions arise for our consideration:
(i)Whether the finding of the High Court that the two regional language newspapers in which the notification under Section 4(1) was published did not have reasonably wide circulation in the locality and therefore there is non-compliance with the provisions of Section 4(1), calls for interference?
(ii)Whether the acquisition is invalid?
17.Section 4(1) of the Act relates to publication of preliminary notification and relevant portion thereof is extracted below:
“4. 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….” Section 4(1) of the Act requires publication of the preliminary notification by three modes: (i) publication in the Official Gazette; (ii) publication in two daily newspapers circulating in the locality, at least one of which being in the regional language; and (iii) causing public notice of the substance of such preliminary notification to be given at convenient places in the locality.
18.The controversy in this case relates to the second mode, that is, publication in “two daily newspapers circulating in that locality”. The provision does not use the words “two daily newspapers having a wide circulation in the locality”. In the absence of any definition or explanation in the statute, the question is as to how should the words “circulating in that locality” be understood? Do they refer to newspapers having the widest circulation in the locality? Or do they refer to newspapers which are regularly sold or circulated in the locality, irrespective of numbers, even if their circulation figures are very modest?
19.If there are nine newspapers circulating in the locality, having a market share of 25%, 20%, 15%, 12%, 10%, 8%, 5%, 3% and 2% of the total daily sales of regional newspapers in the locality, whether all of them can be termed as “newspapers circulating in the locality” or whether only newspapers with a particular minimum percentage can be described as “newspapers circulating in the locality”. Can it be said that the newspapers having 5%, 3% and 2% of total sales of newspapers, are not newspapers circulating in the locality? Can it be said that only the newspapers having the maximum market share of 25% or 20% or 15% of the total sales in the locality, could be described as newspapers circulating in the locality? Whether the total circulation figures of the newspaper are relevant or whether the circulation figures in the locality alone are relevant?
20.From a newspaper's point of view, if its total circulation is 40,000 and out of it circulation figure for Chennai is 21,000, it can very well say that its major circulation is in Chennai. But from the reader's point of view, if the total number of regional newspapers sold in Chennai is a million, a newspaper having a circulation of 21,000 (which is around 2%) may not be considered to be a newspaper with a wide circulation in the locality. Which perspective should be preferred? If Section 4(1) is to be interpreted as requiring publication in two newspapers having reasonably wide circulation, as held by the High Court, what should be the guidelines to determine “reasonably wide circulation”? Where should the line be drawn and whether any line should be drawn are questions that may arise, if we read the words “newspapers circulating in that locality” as “newspapers having wide circulation in that locality”.
21.The purpose of publication of the notification is twofold: First is to ensure that adequate publicity is given so that the landowners and persons interested will have an opportunity to file their objections under Section 5-A of the Act. Second is to put the landowners/occupants on notice that government officers will be entering upon the property for carrying on the activities enumerated in Section 4(2) of the Act. Section 4(1), before its amendment in 1984, required publication of the preliminary notification only in the Official Gazette and public notice of the substance of the notification at convenient places in the locality.
22.This Court, in M.P. Housing Board v. Mohd. Shafi [(1992) 2 SCC 168] explained the object of issuing a notification under Section 4 of the Act thus: (SCC p. 173, para 8)
“8.… The object of issuing a notification under Section 4 of the Act is twofold. First, it is a public announcement by the Government and a public notice by the Collector to the effect that the land, as specified therein, is needed or is likely to be needed by the Government for the ‘public purpose’ mentioned therein; and secondly, it authorises the departmental officers or officers of the local authority, as the case may be to do all such acts as are mentioned in Section 4(2) of the Act. The notification has to be published in the locality and particularly persons likely to be affected by the proposal have to be put on notice that such an activity is afoot. The notification is, thus, required to give with sufficient clarity not only the ‘public purpose’ for which the acquisition proceedings are being commenced but also the ‘locality’ where the land is situate with as full a description as possible of the land proposed to be acquired to enable the ‘interested’ persons to know as to which land is being acquired and for what purpose and to take further steps under the Act by filing objections, etc. since it is open to such persons to canvass the non-suitability of the land for the alleged ‘public purpose’ also. If a notification under Section 4(1) of the Act is defective and does not comply with the requirements of the Act, it not only vitiates the notification, but also renders all subsequent proceedings connected with the acquisition, bad.”
23.By Amendment Act 68 of 1984, Section 4(1) was amended introducing the additional requirement relating to publication of the notification in two daily newspapers circulating in the locality. The purpose of requiring such newspaper publication is to give as wide a publicity to the notification as possible, as the State Gazettes do not have a wide circulation and causing public notice of the substance of the notification at convenient places in the locality would give notice only in specific pockets in the locality. The legislature therefore provided for publication in two newspapers (of which at least one being in the regional language) to have a wider reach. Having regard to the object and purpose of the provision, it is evident that publication should be in newspapers which have a reasonably good circulation in the locality. If the publication is to be made in obscure newspapers having only token or insignificant circulation, either to cut the cost of publication or by way of political or official patronage, that will defeat the very purpose of providing for publication in newspapers.
24.On the other hand, if the words “newspapers circulating in that locality” are to be interpreted in a purely literal and normal sense, they would mean newspapers having a regular and steady circulation among the general public in the locality, irrespective of the number. In that sense even a newspaper having 2% to 3% market share out of the total circulation figures for regional newspapers sold in the locality, can be considered as a newspaper “circulating in the locality”. Therefore, where there is compliance with the requirement relating to publication in two daily newspapers circulating in that locality (one of which at least should be in the regional language) in a technical or literal sense, but it is found that those newspapers have only a circulation share of 2% to 3% of the total number of newspapers sold in the locality, it may not be possible to mechanically invalidate the entire acquisition, on the ground that the two regional newspapers in which the notification was published were not “circulating in that locality”.
25.We have held that the object and purpose of the amended Section 4(1) of the Act is to provide for publication of the preliminary notification in two daily newspapers having reasonably wide circulation in the locality so that people (persons interested) in that locality may become aware of the proposals for acquisition. We have also held that publications in two newspapers having regular and steady circulation, but having a market share of only 2% to 3% of the total newspapers cannot invalidate the acquisition proceedings automatically, on the ground that such publication violates the requirement of Section 4(1) relating to newspaper publication. As the said two findings are slightly contradictory, it is necessary to harmonise the consequences.
26.This leads us next to the consequences of publication of the notification in two newspapers having reasonably wide circulation and consequences of bona fide publication of the notification in two newspapers which do not have a wide circulation in the locality.
27.If there is failure to publish in two daily newspapers or if the publication is in two newspapers that have no circulation at all in the locality, without anything more, the notification under Section 4(1) of the Act and the consequential acquisition proceedings will be vitiated, on the ground of non-compliance with an essential condition of Section 4(1) of the Act.
28.If the two newspapers carrying the publication of the notification have reasonably wide circulation in the locality (apart from the publication of the notification in the gazette and causing public notice of the substance of the notification to be given at convenient places in the locality), then the requirements of Section 4(1) are complied with and all persons concerned in the locality shall be deemed to have notice of the notification. (For this purpose, the publication need not be in newspapers having the widest or largest circulation, but it is sufficient if the publication is in newspapers having reasonably wide circulation.) In that event, neither the notification under Section 4(1), nor the consequential acquisition proceedings would be open to challenge, on the ground of violation of Section 4 of the Act.
29.If the newspapers in which the notification is published were circulating in the locality, but did not have a reasonably wide circulation in the locality, then neither the notification under Section 4(1) nor the consequential acquisition proceedings, will become vitiated automatically. If the person aggrieved, apart from demonstrating that the two newspapers did not have reasonably wide circulation in the locality, also asserts that as a consequence, he did not have notice of the proposed acquisition that was provided for in Section 4(1) of the Act, in the absence of evidence to the contrary, the acquisition to the extent of the land of such person will be vitiated. But if such assertion is rebutted by the acquiring authority by placing evidence to show that the person concerned had in fact notice (as for example where he participated in the enquiry under Section 5-A of the Act), the acquisition will not be vitiated on the ground of violation of Section 4-A of the Act.
30.If the person challenging the acquisition is able to establish that the notifications were deliberate and with mala fides, published in newspapers having negligible circulation, to avoid notice to the persons concerned, then Section 4(1) will be violated.
31.The acquiring authority need not prove actual notice of the proposal to acquire under Section 4(1) of the Act, to the person challenging the acquisition. As the purpose of publication of public notice provided in Section 4(1) of the Act is to give notice of the proposal of acquisition to the persons concerned, such notice can also be by way of implied notice or constructive notice. For this purpose, we may refer to the difference between actual, implied and constructive notice:
1.When notice is directly served upon a party in a formal manner or when it is received personally by him, there is actual notice.
2.If from the facts it can be inferred that a party knew about the subject-matter of the notice, knowledge is imputed by implied notice. For example, if the purpose of the notice is to require a party to appear before an authority on a particular date, even though such a notice is not personally served on him, if the person appears before the authority on that date or participates in the subsequent proceedings, then the person can be said to have implied notice.
3.Notice arising by presumption of law from the existence of certain specified facts and circumstances is constructive or deemed notice. For example, any person purchasing or obtaining a transfer of an immovable property is deemed to have notice of all transactions relating to such property effected by registered instruments till the date of his acquisition. Or, where the statute provides for publication of the notification relating to a proposed acquisition of lands in the gazette and newspapers and by causing public notice of the substance of the notification at convenient places in the locality, but does not provide for actual direct notice, then such provision provides for constructive notice; and on fulfilment of those requirements, all persons interested in the lands proposed for acquisition are deemed to have notice of the proposal regarding acquisition.
36.It is significant to note that there is no averment in the writ petition that the respondents were not aware of the proposed acquisition. It is evident that they were aware of the notification. It is also inconceivable that Respondents 5 to 11 who knew about the proposed acquisition would not have informed Respondents 1 to 4 about the proposed acquisition. Be that as it may. Therefore, even if the publication in two regional language newspapers is considered to be not in compliance with the requirements of Section 4(1), it cannot affect the validity of the preliminary notification or the consequential proceedings in regard to Survey Nos. 186/1 and 186/2.”
The Hon’ble Supreme Court in Urban Improvement Trust vs. Vidhya Devi & Others, 2024 SCC OnLine SC 3725, while relying upon and reiterating the principles laid down in Special Duty Collector, Land Acquisition, C.M.D.A. vs. J. Sivaprakasam & Others (supra), has held as under:
“56.The provisions of the Section 52(2) are akin to Section 4 of the Land Acquisition Act, 1894. To initiate the acquisition proceedings, the State must publish a notice under Section 52(2) of the RUI Act for the owners or any other interested parties to show cause as to why their land should not be acquired.
57.As regards the validity of the notification under Section 52(1) for the acquisition of the Nangli Kota lands and procedural deviation as alleged by the respondents, we observe the following:
a)It is an admitted fact by both the parties that there were no individual notices served upon the owners as required under Section 52(2) nor was the notice of the proposed acquisition pasted on some conspicuous space in the locality where the property was situated. The State Government had only published the notice under Section 52(2) in the official gazette.
b)The object of issuing a notice under Section 52(2) prior to a notification under Section 52(1) is to allow the owners and interested parties to put forth their case as to why a land proposed to be acquired should not be acquired or to make representations regarding the amount of compensation. A deviation from the process prescribed runs the risk of prejudicing the rights of the landowners and should be discouraged.
c)A plain reading of Section 52(2) shows that the legislature considered publication of notice in the official gazette and pasting of the same in conspicuous areas of the locality is considered to be sufficient notice. These requirements are akin to the ones under Section 4 of the Land Acquisition Act. The requirement of individual notices to be served upon the owners is an additional measure taken by the legislature to safeguard the rights of the landowners. While the State Government ought to have complied with this measure, we cannot say that non-compliance therewith can make the whole acquisition proceedings infructuous.
d)However, a reading of Section 52(2) shows that the conditions of publication of notice in the official gazette and pasting the same at a conspicuous area of the locality are together considered to be sufficient notice and fulfilment of just one requirement out of the two risked causing prejudice to the respondents herein.
e)What remains to be seen is whether the improper service of notice did in fact deprive the respondents from making their representations and objections to the acquisition proceedings. The documents placed on record show that the seven sons of late Ram Narain participated in the proceedings before the OSD and were aware that the Nangli Kota lands were proposed to be acquired.
f)This Court has held in the case of Special Deputy Collector, Land Acquisition CMDA (supra) that:
“The acquiring authority need not prove actual notice of the proposal to acquire under section 4(1) of the Act to the person challenging the acquisition. As the purpose of publication of public notice provided in section 4(10) of the Act is to give notice of the proposal of acquisition to the persons concerned, such notice can also be by way of implied notice or constructive notice. For this purpose, we may refer to the difference between actual, implied and constructive notice:
1.When notice is directly served upon a party in a formal manner or when it is received personally by him, there is actual notice.
2.If from the facts it can be inferred that a party knew about the subject matter of the notice, knowledge is to be imputed by implied notice. For example, if the purpose of the notice is to require a party to appear before an authority on a particular date, even though such a notice is not personally served on him, if the person appears before the authority on that date or participates in the subsequent proceedings, then the person can be said to have implied notice.
3.Notice arising by presumption of law from the existence of certain specified facts and circumstances is constructive or deemed notice, for example, any person purchasing or obtaining a transfer of an immovable property is deemed to have notice of all transactions relating to such property affected by registered instruments till the date of his acquisition. Or where the statute provides for publication of the notification relating to a proposed acquisition of lands in the gazette and newspapers and by causing public notice of the substance of the notification at convenient places in the locality, but does not provide for actual direct notice, then such provision provides for constructive notice and on fulfillment of those requirements, all persons interested in the lands proposed for acquisition are deemed to have notice of the proposal regarding acquisition.” [Emphasis supplied] Therefore, the participation in the proceedings by the landowners themselves is sufficient evidence that the object of the publication of the notice under Section 52(2) was met and we are of the view that the acquiring authority that is, the State was not required to prove actual notice of the proposal to acquire in this case and the knowledge of the appellants about the acquisition proceedings is equivalent to implied notice to the appellants.
g)Therefore, the non-service of individual notices upon the owners under Section 52(2) cannot be a ground to invalidate the acquisition proceedings. We find that the reasoning of the High Court to this extent is liable to be set aside.
58.As regards the validity of the notification under Section 52(1) for the acquisition of the Moongaska lands and procedural deviation as alleged by the respondents, we observe the following:
a)In case of this parcel of land as well, the State did not serve individual notices upon the owners. The notice under Section 52(2) was also not pasted at a conspicuous area of the locality in which the property is situated. The State Government only published the notice in the official gazette.
b)This Court in the case of Kolkata Municipal Corporation (supra) has held that the “right to be heard” forms an integral part of the seven sub-rights that have been synchronously incorporated in laws concerning compulsory acquisition. Improper service of notice under Section 52(2) runs the risk of contravening the “right to be heard”. Whether the objective of making the respondents aware was achieved or not has to be tested on the basis of concrete evidence placed on record by the parties.
c)For the reasons stated hereinabove, we move directly to ascertain whether the improper service of notice prejudiced the rights of the landowners. From the documents placed on record before us, we find that the representations made by the landowners dated 30.10.1976, 01.11.1976, 30.12.1976, 17.01.1977, 07.02.1977, 24.02.1977 and 10.03.1977 were only from legal heirs of two of the original landowners, that is the late Mr. Ram Narain and Mr. Yogesh Chand Goyal. We find that there is no evidence of the participation by the other two original landowners that is, Mr. Radhey Shyam and Mr. Manohar Lal or their legal heirs. The appellant Trust or the State Government has also not adduced any evidence whether written or oral that these two landowners and their legal heirs actively participated in the acquisition proceedings and made their objections heard.
d)The appellant's contention that there is a presumption as per illustration (e) of Section 114 of the Evidence Act, 1872 that the notification under Section 52(1) was in conformity with the provisions of the RUI Act unless dislodged by the respondents, is of no avail to them. Such presumption is available to the State in cases where the owner or interested party had not gotten their names recorded in the revenue records thereby disabling the State from identifying who the interested parties are. This has been the position adopted by this Court in Ahuja Industries Ltd. v. State of Karnataka, (2003) 5 SCC 365 and the split verdict by Manoj Misra J. in the case of Urban Improvement Trust, Bikaner v. Gordhan Dass (D.) through Lrs., (2024) 3 SCC 250 wherein it was held that “mere non-service of notice, under Section 52(2) of the 1959 Act, upon non-recorded owner, such as the plaintiff, would not render the acquisition notification under Section 52(1) void…”
However, in the present case, there was no question of the landowners’ names not being present in the revenue records, therefore, the presumption under Section 114(e) of the Evidence Act, 1872 is of no help to the appellant's case.
e)We find from the records placed before us that improper service of notice under Section 52(2) did in fact prejudice the rights of the two original landowners and their legal heirs and they were not provided with an opportunity to be heard. Such factum is sufficient to declare the notification under Section 52(1) for the Moongaska land, invalid. Thus, we uphold the findings of the High Court to this extent.
59.This Court in the case of D.B. Basnett (D) through Lrs v. Collector, East District, Gangtok, Sikkim, (2020) 4 SCC 572 has held that:
“14.… even though rights in land are no more a fundamental right, still it remains a constitutional right under Article 300A of the Constitution of India, and the provisions of any Act seeking to divest any person from the rights in property have to be strictly followed.
15.It is also settled law that following the procedure of Section 4(1) of the Land Acquisition Act, 18942 (akin to Section 5(1) of the said Act) is mandatory, and unless that notice is given in accordance with the provisions contained therein, the entire acquisition proceeding would be vitiated. An entry into the premises based on such non-compliance would result in the entry being unlawfu l3. The law being ex-propriatory in character, the same is required to be strictly followed. The purpose of the notice is to intimate the interested persons about the intent to acquire the land. These provisions, as they read, of the said Act, thus, are also required to be so followed.” [Emphasis supplied] Therefore, we are of the view that in cases of compulsory acquisition by the State, it is all the more important that proper service of notice be made to the owners.”
In the aforesaid case of Urban Improvement Trust vs. Vidhya Devi & Others (supra), the Hon'ble Supreme Court has clarified that as the object of publication is to apprise the land owners, therefore, knowledge of the acquisition is an important factor. Therefore, even if any person, despite there being any proper publication, or is of personal notice, either participates in the subsequent proceedings or had acquired knowledge, then it can be assumed that the person was having ample notice. In the present case, the petitioner has come out with a specific case that he had no knowledge with regard to acquisition proceedings and, therefore, he was deprived of participating in the inquiry under Section 5A of the Act of 1894.
In the case of Khub Chand & Others(supra), it has been held by the Hon'ble Supreme Court that all the modes prescribed under section 4 of the Act of 1894 for publication of notification are mandatory, including publication in newspapers.
In the case of State of Mysore vs. Abdul Razak Sahib(supra), the Hon'ble Supreme Court has reiterated the necessity of publication of notice strictly in accordance with the provisions of Section 4 of the Act of 1894 and it has been held that in absence of such publication, the interested person is likely to be deprived of his right to object against the acquisition proceedings. Similar principles have been laid down in the cases of Narindrajit Singh & Ranjit Singh & Others (supra); Kulsum R. Nadiadwala (supra); V.K.M. Kattha Industries Private Limited (supra) and Collector (District Magistrate) Allahabad & Another vs. Raja Ram Jaiswal (supra).
In J&K Housing Board & Another vs. Kunwar Sanjay Krishan Kaul & Others (supra), the Hon’ble Supreme Court has gone to the extent of holding that irrespective of the fact that the affected parties may have had knowledge of the acquisition proceedings, failure to follow the procedure prescribed under Section 4 of the Act of 1894 would vitiate the acquisition proceedings. Paragraph 32 of the aforesaid judgment, being relevant, is reproduced hereunder:
“32.It is settled law that when any statutory provision provides a particular manner for doing a particular act, the said thing or act must be done in accordance with the manner prescribed therefor in the Act. Merely because the parties concerned were aware of the acquisition proceedings or served with individual notices does not make the position alter when the statute makes it very clear that all the procedures/modes have to be strictly complied with in the manner provided therein. Merely because the landowners failed to submit their objections within 15 days after the publication of notification under Section 4(1) of the State Act, the authorities cannot be permitted to claim that it need not be strictly resorted to.”
Likewise, in Union of India & Others vs. Gopaldas Bhagwan Das & Others, (supra), the Hon’ble Supreme Court has reiterated that acquisition proceedings undertaken without publication of the notification at convenient places in the locality, notwithstanding the fact that personal notices may have been served upon the claimants, constitute a serious infringement of the mandatory requirements prescribed under Section 4 of the Act of 1894. On this ground, the acquisition proceedings were held to be vitiated and were consequently nullified. The following observations of the aforesaid judgment being relevant are reproduced hereunder:
“3.The Court then held : (Kulsum R. Nadiadwala case [Kulsum R. Nadiadwala v. State of Maharashtra, (2012) 6 SCC 348] , SCC p. 352, paras 13-15)
“13.In the instant case, the respondents before the High Court had filed their reply-affidavit. They did not dispute the contentions of the appellants that they had not issued any public notices as required under Section 4 of the Act. They only reiterated that such notification was published in the Official Gazette. Since the mandatory requirement as required under Section 4(1) of the Act is not complied with by the respondents, while acquiring the lands in question, in our opinion, the entire acquisition proceedings requires to be declared as null and void.
14.This Court in J&K Housing Board v. Sanjay Krishan Kaul [(2011) 10 SCC 714] has observed that all the formalities of serving notice to the interested person, stipulated under Section 4 of the Act, has to be mandatorily complied with in the manner provided therein, even though the interested persons have knowledge of the acquisition proceedings. This Court further observed thus : (SCC p. 725, para 32)
‘32. It is settled law that when any statutory provision provides a particular manner for doing a particular act, the said thing or act must be done in accordance with the manner prescribed therefor in the Act. Merely because the parties concerned were aware of the acquisition proceedings or served with individual notices does not make the position alter when the statute makes it very clear that all the procedures/modes have to be strictly complied with in the manner provided therein. Merely because the landowners failed to submit their objections within 15 days after the publication of notification under Section 4(1) of the State Act, the authorities cannot be permitted to claim that it need not be strictly resorted to.’
15.In view of the conclusion that we have reached on the first issue canvassed by the learned counsel for the appellants, we do not think that other issues that the learned counsel for the appellants has raised and canvassed before us need to be answered.”
5.Ms Rekha Pandey, learned counsel appearing on behalf of the appellant, has raised several points in support of this appeal. First and foremost, she adverted to an order of this Court dated 27-3-2018 [Union of India v. Gopaldas Bhagwan Das, 2018 SCC OnLine SC 3621] by which a Division Bench of this Court has referred this matter to a larger Bench of three Judges. This order reads as follows : [Union of India v. Gopaldas Bhagwan Das, 2018 SCC OnLine SC 3621], SCC OnLine SC paras 1-7)
“1.The land of the respondents was acquired vide Notification dated 24-10-1975 under Section 4 of the Land Acquisition Act, 1894 (“the Act”). The said land was earlier requisitioned in the years 1942 to 1945 for defence purpose. Award was made in the year 1986 and symbolic possession of the land was taken on 6-1-1987. Objections of the award were filed by the respondents against the award. A reference under Section 18 of the Act was made which was disposed of. Thereafter, the writ petition was filed by the respondents mainly on the ground that there was no due publication of the notification under Section 4 of the Act which was a mandatory requirement.
2.The High Court upheld the plea of the respondents relying upon judgment of this Court in Kulsum R. Nadiadwala v. State of Maharashtra [(2012) 6 SCC 348].
3.The learned counsel for the appellants submitted that having regard to the fact that the land was already being used for defence purpose since the year 1942 to 1945 and the notification under Section 4 issued on 24-10-1975 was challenged for the first time by the writ petition filed on 24-6-2002, the High Court should have dismissed the writ petition on the ground of delay and laches as entertaining such petition will seriously affect public interest. It was submitted that view taken in the relied upon judgment ignores the concept of laches.
4.The learned counsel for the respondents submits that in spite of delay and laches, this Court in the aforesaid judgment quashed the acquisition.
5.We are of the view that delay and laches may be a bar to challenge to the acquisition after 27 years. In T.N. Housing Board v. M. Meiyappan [(2010) 14 SCC 309] this Court held that in land acquisition proceedings the Court should not encourage stale litigation as it may hinder projects of public importance. The contra view in three-Judge Bench decision in Dayal Singh v. Union of India [(2003) 2 SCC 593] was held to be in conflict with the Constitution Bench judgment in Rabindranath Bose v. Union of India [(1970) 1 SCC 84] and three-Judge Bench judgment in Printers (Mysore) Ltd. v. M.A. Rasheed [ (2004) 4 SCC 460]. The said judgment was cited with approval in recent judgment of three-Judge Bench in Indore Development Authority v. Shailendra [(2018) 3 SCC 412].
6.In view of the above, the view taken by the two-Judge Bench in Kulsum R. Nadiadwala v. State of Maharashtra to the effect that delay and laches have to be ignored is not free from doubt.
7.Thus, we are of the view that the matter needs to be placed before a Bench of three Judges. Accordingly, let the papers be placed before the Hon'ble the Chief Justice of India for appropriate directions.”
8.Though this Court has, by its order dated 27-3-2018 [Union of India v. Gopaldas Bhagwan Das], referred this case to a larger Bench in view of the decision in Kulsum R. Nadiadwala case that delay and laches have to be ignored, we are of the view that on the facts of this case, we need not answer this question. This is for the reason that Section 4 notification that was struck down in Kulsum R. Nadiadwala case is the very notification in the facts of this case. We may also note that in para 13 of Kulsum R. Nadiadwala case set out hereinabove, this Court quashed the entire acquisition proceedings stating that they be declared as null and void. We are unable to agree with Ms Pandey's contention that Section 4 notification not only deals with various other lands in Village Malad but also deals with a land in a different village altogether viz. Village Wadhawan, and that this Court's judgment did not go to the extent of declaring the acquisition bad so far as Village Wadhawan is concerned. So far as Village Malad is concerned, where the land in Kulsum R. Nadiadwala case was land that was adjacent to the present land, the very Section 4 notification has been struck down and declared null and void, and this being the case, it would not be in the interest of justice to allow the present appeal in favour of the Union of India, as this would amount to a discrimination between two persons who are otherwise similarly placed.
10.Insofar as the “per incuriam” point is concerned, this can be disposed of by stating that even though newspaper publication of Section 4 notification came in by amendment for the first time in 1984, the requirement of public notice where the land is situate in addition to publication in the Official Gazette, was always there from the inception. Kulsum R. Nadiadwala case [Kulsum R. Nadiadwala v. State of Maharashtra, (2012) 6 SCC 348] did not deal with newspaper publication at all. It only dealt with the requirement of publication in the Official Gazette and public notices of the substance of the notification being given in the locality in which the lands are acquired, both of which were held to be cumulative and mandatory requirements of Section 4.
11.So far as Indore Development Authority case [Indore Development Authority v. Shailendra, (2018) 3 SCC 412] is concerned, the Constitution Bench is seized of several questions, all of which pertain to the construction of Section 24 of the Right to Fair Compensation and Transparency in Land Acquisition, Rehabilitation and Resettlement Act, 2013.
12.This being the case, and regard being had to what we have stated hereinabove, it is wholly unnecessary for us to adjourn this case in order to await the judgment of the Constitution Bench in this case. Given the fact that this is a defence project in which possession has been with the Union since 1942, the same facts would obtain as in Kulsum R. Nadiadwala case [Kulsum R. Nadiadwala v. State of Maharashtra, (2012) 6 SCC 348] in which relief has been granted to Kulsum R. Nadiadwala. This case, therefore, cannot lead to a different conclusion on similar facts.”
It is also settled preposition that opportunity of hearing under section 5A of the Act of 1894 is not an empty formality and rather the only right given to the land owner to object to the acquisition proceedings. In the instant case, this Court finds that on account of not following the proper procedure for publication of notification in the newspapers and rather by allegedly publishing the same in unknown newspapers, even copies thereof was not placed on record by the respondent, this Court finds that the conduct of the respondents shows sheer defiance of mandatory statutory procedure. On account of such conduct of the respondents, the petitioner has been deprived of his right to participate in the inquiry proceedings under section 5A of the Act of 1894.
In the case of Union of India & Others vs. Mukesh Hans, (2004) 8 SCC 14, the Hon'ble Supreme Court has held as under:
“35.At this stage, it is relevant to notice that the limited right given to an owner/person interested under Section 5-A of the Act to object to the acquisition proceedings is not an empty formality and is a substantive right, which can be taken away for good and valid reason and within the limitations prescribed under Section 17(4) of the Act. The object and importance of Section 5-A inquiry was noticed by this Court in the case of Munshi Singh v. Union of India [(1973) 2 SCC 337] wherein this Court held thus: (SCC p. 342, para 7)
“7.Section 5-A embodies a very just and wholesome principle that a person whose property is being or is intended to be acquired should have a proper and reasonable opportunity of persuading the authorities concerned that acquisition of the property belonging to that person should not be made. … The legislature has, therefore, made complete provisions for the persons interested to file objections against the proposed acquisition and for the disposal of their objections. It is only in cases of urgency that special powers have been conferred on the appropriate Government to dispense with the provisions of Section 5-A:”
In the light of above, this Court is of the opinion that the respondents have utterly failed to follow the mandatory procedure of publication of notification under Section 4 of the Act of 1894, which has ultimately deprived the petitioner of the right of being heard under Section 5-A of the Act of 1894. Hence, on account of violation of mandatory provisions, the entire acquisition proceedings stand vitiated.
Merely the fact that award has been passed in respect of impugned notification, this Court finds that under the circumstances where the initial notifications have suffered serious lapses and infirmities on account of not following mandatory procedure as contemplated under the provisions of the Act of 1894 and where the foundation of the acquisition proceedings has been held to be illegal by this Court, superstructure of award erected upon such illegal notifications has got no independent existence and the same would automatically stand vitiated.
Admittedly, till date, possession of the land and property belonging to the petitioner has not been taken by the respondents. Consequently, it cannot be said that the land in question has vested in the State Government. In these circumstances, the contention of the respondents that a substantial part of the acquired land has already been utilised for industrial purposes and that retention of the petitioner’s land would cause an impediment in the functioning of the industrial area, does not advance the case of the respondents.
The question of legality of acquisition has to be examined with reference to the individual rights of the person whose property is sought to be acquired. The mere fact that other landowners have accepted the acquisition or that a substantial portion of the acquired land has been utilised pursuant thereto cannot, by itself, defeat the lawful challenge raised by an individual landowner whose property has not been taken into possession.
In Radhy Shyam(Dead) through LRs & Others vs. State of Uttar Pradesh & Others, (2011) 5 SCC 553, the Hon’ble Supreme Court dealt with a similar situation where a substantial portion of the acquired land had vested in the Government and only some of the landowners had challenged the acquisition proceedings. The Hon’ble Supreme Court held that the right to property is an individual right and that a person cannot be deprived of his property merely because other landowners have accepted the acquisition proceedings. The following observations of the judgment being relevant are reproduced hereunder:
“87.The argument of the learned Senior Counsel for the respondents that the Court may not annul the impugned acquisition because land of other villages had already been acquired and other landowners of Village Makaura have not come forward to challenge the acquisition of their land cannot be entertained and the Court cannot refuse to protect the legal and constitutional rights of the appellants merely because the others have not come forward to challenge the illegitimate exercise of power by the State Government. It is quite possible that others may have, due to sheer poverty, ignorance and similar handicaps not been able to avail legal remedies for protection of their rights, but that cannot be made the basis to deny what is due to the appellants.”
Equally untenable is the contention of the respondents that in view of the fact that industries were likely to be shifted from Delhi to Rajasthan, the respondents had invoked powers under Section 17(2) of the Act of 1894, as nothing has been placed on record that notification dated 15.09.1994 (Annexure-6) allegedly issued Section 17(2) read with Section 4 of the Act of 1894 was ever published in the Official Gazette, nor is there any whisper in the notification or otherwise on record to reflect any element of urgency or emergency. By bare reading from the contents thereof, the said notification cannot be said to be notification under Section 17(2) of the Act of 1894, either in form or in substance. Even otherwise, careful reading of Section 17(2) of the Act of 1894 makes it evident that the provision is an exception to the ordinary procedure prescribed under the Act and, therefore, its application has to be confined strictly to the circumstances expressly contemplated therein. The provision does not confer an unfettered or general power upon the acquiring authority to dispense with the statutory procedure merely on the ground of urgency. The authority must first satisfy the conditions stipulated in Section 17(2) of the Act of 1894 and must demonstrate the existence of circumstances which bring the acquisition within the specific contingencies enumerated therein. The extraordinary power under Section 17(2) of the Act of 1894, being capable of depriving the landowner of the normal statutory protection available under the acquisition proceedings, cannot be invoked mechanically or as a matter of routine. More particularly, the mere assertion that the land is urgently required for a public purpose, without establishing the factual foundation necessary for invoking the particular clause of Section 17(2) of the Act of 1894, would not validate exercise of such power. Thus, where the statutory conditions precedent are not shown to have existed, the special power under Section 17(2) of the Act of 1894 cannot be sustained merely by describing the acquisition as one involving urgency.
For the reasons recorded hereinabove and upon a comprehensive consideration of the entire material available on record, this Court finds that the respondents have utterly failed to discharge the statutory obligations cast upon them under the mandatory provisions of Section 4 of the Act of 1894. The non-compliance with the said mandatory requirements goes to the root of the acquisition proceedings and consequently, the entire acquisition proceedings are held to be vitiated.
Accordingly, notification dated 15.09.1994 issued under Section 4 of the Act of 1894 and declaration dated 24.08.1995 issued under Section 6 of the Act of 1894 and published in Official Gazette on 31.08.1995 along with all consequential and subsequent proceedings qua the petitioners, are hereby quashed and set aside. The respondents are restrained from interfering with the ownership and possession of the petitioners over the land in question pursuant to the aforesaid acquisition proceedings.
Writ petition is, accordingly, allowed in the aforesaid terms.
Pending applications, if any, stand disposed of.