PARTAP SINGH Vs. STATE OF HARYANA

JUDGEMENT

(1.) THE short question raised in the instant petition filed under Article 226 of the Constitution is whether the last date of publication of notice under Section 4 of the Land Acquisition Act, 1894 (for brevity 'the Act') would be the relevant date for issuance of notification under Section 6 of the Act when the provisions of Section 17(2)(c) read with Section 17(4) of the Act on account of urgency have been invoked. The afore-mentioned question has been raised by challenging notification dated 3.1.2008 issued under Section 4 read with Section 17 of the Act and declaration dated 4.1.2008 made under Section 6 read with Section 17 of the Act (Annexures P.2 and P.3 respectively). The principal ground of challenge is that since the substance of notification issued under Section 4 of the Act was published in the locality on 24.1.2008 then no declaration could have been issued under Section 6 read with Section 17 of the Act before that date. It has been submitted that the declaration having been issued on 4.1.2008 ( Annexure P.3) suffer from legal infirmity and is thus liable to be set aside.

(2.) MR . Pankaj Jain, learned counsel for the petitioner has argued that a bare perusal of Section 4 of the Act would show that the last date of publication giving substance of the notification has to be considered as the date of notice published under Section 4 of the Act. According to the learned counsel the date of notification in the present case must be regarded according to the afore-mentioned provision to be 24.1.2008 and therefore no declaration under Section 6 read with Section 17 of the Act could have been made on 4.1.2008. He has highlighted that a declaration under Section 6 read with Section 4 of the Act has been made one day after the notification under Section 6 of the Act has been issued whereas the last publication of the substance of the notification in the locality was made on 24.1.2008. In support of his submission, learned counsel has placed reliance on a judgement of the Hon'ble supreme Court in the case of State of U.P. v. Radhey Shyam Nigam and others, AIR 1989 SC 682. Placing reliance on the observations made in para 14 of the judgement, learned counsel has submitted that the notification under Section 6 read with Section 17 of the Act issued on 4.1.2008 stands vitiated.

(3.) HAVING heard the learned counsel and perusing the paper book with their able assistance we are of the view that this petition is liable to be dismissed. It is true that numerous steps are postulated by Section 4 of the Act before issuance of declaration under Section 6 of the Act. Section 4 of the Act in terms require the publication of notice in the newspaper and in the absence of invoking the urgency provision the usual procedure as contended by the learned counsel has to follow. However, when urgency provisions postulated by Section 17(2) and Section 17(4) of the Act have been invoked then the publication of notification in two local newspapers and giving notice of the substance at three convenient places in the locality is not mandatory. The question came up for consideration before Hon'ble the Supreme Court in Radhey Shyam's case (supra) and interpreting Section 17(4) of the Act it was held that declaration under Section 6 of the Act has to be made after publication of the notification subsequently. In other words, when urgency provision has been invoked then declaration under Section 6 of the Act has to be made subsequently which means that it could be even a day later. Similar controversy was raised before the Hon'ble Supreme Court in Mohan Singh's case (supra) on which reliance has been rightly placed by the learned State counsel. In para 13 of the judgement the precise question has been dealt with and it has been held that various other steps postulated by Section 4 of the Act regarding publication of the substance of notification in the locality is not mandatory and only a gap of atleast a day between the publication of notification under Section 4(1) of the Act and declaration under Section 6(1) of the Act would be sufficient compliance. Para 13 of the judgement which answers the question against the petitioner reads thus : "13. The question is: whether it is mandatory in such a situation, i.e., after the publication of the notification in the Gazette publication in two local newspapers and giving of notice of the substance of the notification at convenient places in the locality, to await the exercise of power under Section 17 (4)? After giving due and deep consideration to the respective contentions raised by the learned counsel, we are of the considered view that though the compliance of these three steps required under Section 4(1) is mandatory for the exercise of the power under Section 17(4), it is not necessary that all the three steps should be completed before making the declaration under Section 6(1) and have it published for directing the Collector to take possession under Section 17(1) or 17(2). What is needed is that there should be a gap of time of at least a day between the publication of the notification under Section 4 (1) and of the declaration under Section 6(1). Herein, we dispose of the controversy and agree with Shri Shanti Bhushan that the date of the notification and declaration published as mentioned in the Gazette is conclusive but not the actual date of printing of the Gazette. This interpretation of ours would serve the public purpose, namely, the official functions are duly discharged. When the land is urgently needed under Section 17(1), notice under Section 9(1) would be given to the owner steps would be taken to and resume its possession after the expiry of 15 days. If it is needed urgently under Section 17(2), even without waiting for 15 days on issue of notice under Section 9(1) to the owner, the appropriate Government would direct the Collector to take possession of the land immediately. If the publication in the newspapers and in the locality is also insisted upon as preliminary to the exercise of power under Section 17(4) which are mandatory requirements and until last of them occurs, the immediate or urgent necessity to take possession of the land under Section 17(1) or 17(2) before making the award would be easily defeated by dereliction of duty by the subordinate officers or by skillful manoeuvre. The appropriate Government is required to take the decision for acquisition of the land and to consider the urgency or emergency and to make the notification under Section 4(1) and declaration under Section 6 and have them published in the Gazette that the land acquired under Section 4(1) is needed for public purpose; they become conclusive under Section 6; and to give direction to the Collector to take its possession. The publication in the newspapers and giving of notice of the substance of the notification at the convenient places in the locality are required to be done by the Collector authorised by the Government under Section 7 and his subordinate staff. If dereliction of duty is given primacy, delay deflects public justice to meet urgent situation by the acts of subordinate officers for any reason whatsoever. Until that is done and the last of the dates occurs, Government would be unable to act swiftly for the public purpose to take immediate possession envisaged under sub-section (1) or (2) of Section 17 and they would be easily defeated or frustrated." (emphasis added)