Lohia Developers (India) Pvt. Ltd. Thru. Its Authorized Singnatory Shri Rajesh Kumar Shrivastava vs State Of U.P. Thru. Prin. Secy., Housing And Urban Planning Deptt. Civil Sectt Lko. And 4 Others
- Court
- Allahabad High Court
A F R
HIGH COURT OF JUDICATURE AT ALLAHABAD
LUCKNOW
WRIT - C No. - 2466 of 2023
Lohia Developers (India) Pvt. Ltd. Thru. its Authorized Singnatory
Shri Rajesh Kumar Shrivastava
…..Petitioner(s)
Versus
State of U.P. Thru. Prin. Secy., Housing and Urban Planning Deptt.
Civil Sectt Lko. and 4 others
…..Respondent(s)
Counsel for Petitioner(s) : Gaurav Kumar Hasani, Abhinav
Nath Tripathi, Amrendra Nath
Tripathi, Vijay Nandan Mani
Tripathi
Counsel for Respondent(s) : C.S.C., Ratnesh Chandra
Judgment reserved on:27.05.2026
Judgment delivered on:03.07.2026
Court No. - 1
HON'BLE RAJAN ROY, J.
HON'BLE MANJIVE SHUKLA, J.
(Per : Rajan Roy, J.)
1. Heard Shri Amrendra Nath Tripathi, learned Senior Counsel
assisted by Shri Sanjeev Kumar Mishra, learned counsel for the
petitioner, Shri Ratnesh Chandra, learned counsel for the Lucknow
Development Authority and Ms. Isha Mittal, learned Additional Chief
Standing Counsel for the State.
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2. The petitioner herein seeks the following reliefs:-
“i) Issue writ, order or direction in the nature of
Certiorari for quashing the impugned notification
issued under Section 4(1) of the Land Acquisition
Act, 1894 dated 27.12.2013 published on
04.01.2014 (Annexure No. 1) and impugned
declaration under Section 6(1) of the Land
Acquisition Act, 1894 dated 23.01.2015 (Annexure
No. 2), with respect to the land of the Petitioner
bearing Khasra No. 431P, admeasuring area 0.5020
hectare situated at Village – Aahmamau, Tehsil –
Sarojni Nagar, District – Lucknow;
Or
Issue appropriate writ, order or direction to declare
the acquisition of part of Khasra No. 431P
admeasuring are 0.5020 situated at Village –
Aahmamau, Tehsil – Sarojni Nagar, District –
Lucknow, i.e. land of the Petitioner, stood as lapsed;
(ii) Issue writ, order or direction in the nature of
Mandamus commanding the Respondents not to
interfere with the possession of the Petitioner over
the land in question bearing Khasra No. 431P,
admeasuring are 0.5020 hectare situated at Village
– Aahmamau, Tehsil – Sarojni Nagar, District –
Lucknow, during the pendency of this writ petition.”
3. The petitioner purchased land measuring 0.5020 hectares
forming part of Khasra No. 431P situated at Village – Aahmamau,
Tehsil – Sarojni Nagar, District – Lucknow vide registered sale deed
dated 05.02.2007 from the recorded tenure holders. A notification
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dated 27.12.2013 for acquisition of the said land was published in
Hindi daily newspaper Dainik Jagran on 02.01.2014 and in Hindi
Newspaper Amar Ujala on 03.01.2014 under Section 4(1) of the
Land Acquisition Act, 1894 (hereinafter referred to as ‘the Act, 1894’).
The said notification dated 27.12.2013 was then published in the
Official Gazette of the Government of Uttar Pradesh on 04.01.2014.
A public notice/munadi/announcement in respect of the
aforementioned notification was published in the Official Gazette of
the Government of U.P. on 06.02.2014 and munadi/announcement
was accordingly carried out on the said date. A declaration under
Section 6 read with Section 1 of the Act, 1894 was issued on
23.01.2015. Award in respect of the land in question was declared
on 13.07.2016 which was amended on 02.12.2022. These facts are
admitted to the opposite parties in their counter affidavits.
4. The total area of the land which was the subject mater of the
aforesaid notifications measured 2.737 hectares including 0.720
hectares of land comprising Khasra No. 431-P.
5. The question which falls for our consideration is as to whether
the land acquisition proceedings under the Act, 1894 had
commenced prior to 01.01.2014 which is the date on which the Right
to Fair Compensation and Transparency in Land Acquisition,
Rehabilitation and Resettlement Act, 2013 (hereinafter referred to as
‘the Act, 2013’) came into force thereby repealing the old Act, 1894
and also as to what it is the application of saving clause contained in
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Section 6 of the Act, 1897, if any, in this context; whether aforesaid
notifications under the Act, 1894 were published after repeal of the
said enactment by Section 114 of the Act, 2013 or not, if so, what are
the consequences in law as to validity of acquisition proceedings
held as a consequence thereof.
6. The submission of Shri Amrendra Nath Tripathi, learned Senior
Counsel assisted by Shri Sanjeev Kumar Mishra, learned counsel for
the petitioner was that the entire exercise of acquisition has been
undertaken under a repealed enactment, therefore, it is void ab initio.
The award was initially rendered in 2016 which was amended in
2022 based on the acquisition proceedings under a repealed
enactment, therefore, none of it is sustainable.
7. It was also his submission that even on the basis of the
repealed enactment the acquisition proceedings are not sustainable,
firstly, because the timeline prescribed in Section 6 of the Act, 1894
was violated. Secondly, the award was rendered more than two
years after the relevant notification, therefore, it was also hit by
Section 11-A of the Old Act, 1894 which in any case stood repealed.
8. He invited our attention to averments made in Para 21 and 24
of writ petition specifically stating the physical possession of the land
has not yet been taken from the petitioner nor compensation has
been received, which according to him, have not been denied in
counter affidavit of opposite party no. 4- Special Land Acquisition
Officer nor of the Lucknow Development Authority.
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9. Per contra Ms. Isha Mittal, learned Additional Chief Standing
for the State tried to justify the impugned acquisition on the basis of
the notification being dated 27.12.2013 and also a Government
Order dated 13.07.2016.
10. Shri Ratnesh Chandra, learned counsel for Lucknow
Development Authority submitted that the writ petition was delayed
and as, the acquisition proceedings had been initiated way back in
2013/14 and we are now in 2026, therefore, this Court should
decline to exercise its extraordinary jurisdiction in the matter. On the
merits of issue he submitted that merely because notifications were
published whether it be in the newspapers or the Official Gazette or
the public notice was after 01.01.2014 did not mean that the
acquisition proceedings had not been initiated prior to it, as, the
proposal/exercise for acquisition had started much prior to
01.01.2014 and that is how the notification is also dated 27.12.2013,
but, he could not deny the fact that the publication of the notification
referred in Section 4(1) took place after 01.01.2014.
11. The Right to Fair Compensation and Transparency in Land
Acquisition, Rehabilitation and Resettlement Act, 2013 (hereinafter
referred to as ‘the Act, 2013’) was formulated by the Parliament and
undisputedly came into force on 01.01.2014 by a Notification of the
Central Government in the Official Gazette referable to Section 1(3)
thereof. Section 114 of the Act, 2013 reads as under:-
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“ 114. Repeal and saving.- (1) The Land
Acquisition Act, 1894 (1 of 1894) is hereby
repealed.
(2) Save as otherwise provided in this Act
the repeal under sub-section (1) shall not be held
to prejudice or affect the general application of
Section 6 of the General Clauses Act, 1897 (10 of
1897) with regard to the effect of repeals.”
12. Apparently, the Act, 1894 stood repealed by the aforesaid Act
subject to the saving clause contained in Section 6 of the General
Clauses Act, 1897. Section 6 of the General Clauses Act, 1897 reads
as under:-
“ 6. Effect of repeal. - Where this Act, or any [Central
Act] or Regulation made after the commencement of
this Act, repeals any enactment hitherto made or
hereafter to be made, then, unless a different intention
appears, the repeal shall not -
(a) revive anything not in force or existing at the
time at which the repeal takes effect; or
(b) affect the previous operation of any enactment
so repealed or any thing duly done or suffered
thereunder; or
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(c) affect any right, privilege, obligation or liability
acquired, accrued or incurred under any
enactment so repealed; or
(d) affect any penalty, forfeiture or punishment
incurred in respect of any offence committed
against any enactment so repealed; or
(e) affect any investigation, legal proceeding or
remedy in respect of any such right, privilege,
obligation, liability, penalty, forfeiture or
punishment as aforesaid;
and any such investigation, legal proceeding or
remedy may be instituted, continued or enforced, and
any such penalty, forfeiture or punishment may be
imposed as if the repealing Act or Regulation had not
been passed.
6-A. Repeal of Act making textual amendment in
Act or Regulation.- Where any [Central Act] or
Regulation made after the commencement of this Act
repeals any enactment by which the text of any
[Central Act] or Regulation was amended by the
express omission, insertion or substitution of any
matter, then, unless a different intention appears, the
repeal shall not affect the continuance of any such
amendment made by the enactment so repealed and
in operation at the time of such repeal. ”
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13. In this context, we may also refer to Section 24 of the Act, 2013
which deals with certain cases when land acquisition process under
Act, 1894 shall be deemed to have lapsed. Section 24 of the Act,
2013 reads as under:-
“ 24. Land acquisition process under Act No. 1 of
1894 shall be deemed to have lapsed in certain
cases.- (1) Notwithstanding anything contained in this
Act, in any case of land acquisition proceedings
initiated under the Land Acquisition Act, 1894 (1 of
1894),-
(a) where no award under section 11 of the said
Land Acquisition Act has been made, then, all
provisions of this Act relating to the
determination of compensation shall apply; or
(b) where an award under said section 11 has
been made, then such proceedings shall
continue under the provisions of the said Land
Acquisition Act, as if the said Act has not been
repealed.
(2) Notwithstanding anything contained in sub-section
(1), in case of land acquisition proceedings initiated
under the Land Acquisition Act, 1894, where an award
under the said section 11 has been made five years or
more prior to the commencement of this Act but the
physical possession of the land has not been taken or
the compensation has not been paid the said
proceedings shall be deemed to have lapsed and the
appropriate Government, if it so chooses, shall initiate
the proceedings of such land acquisition afresh in
accordance with the provisions of this Act:
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Provided that where an award has been made and
compensation in respect of a majority of land holdings
has not been deposited in the account of the
beneficiaries, then, all beneficiaries specified in the
notification for acquisition under section 4 of the said
Land Acquisition Act, shall be entitled to compensation
in accordance with the provisions of this Act. ”
14. It is only in Section 24(1) of the Act, 2013 that the word
‘initiated’ has been used by the Legislature in the context of
initiation of land acquisition proceedings under the Act, 1894
otherwise the said word has not been used nor defined in the Act,
1894 nor for that matter in the Act, 2013.
15. According to Sub-section (1) of Section 24 of the Act, 2013-
notwithstanding anything contained in the said Act, in any case of
land acquisition proceedings ‘initiated’ under the Act, 1894, (a)
where no award under Section 11 of the Act, 1894 has been made,
then, all provisions of the Act, 2013 relating to the determination of
compensation shall apply; or (b) where an award has been rendered
under Section 11 of the Act, 1894, then such proceedings shall
continue under the provisions of the said Land Acquisition Act i.e.
Act, 1894, as if the said Act has not been repealed.
16. Sub-section (2) of Section 24 of the Act, 2013 came up for
consideration before a Five Judges Bench of Hon’ble the Supreme
Court in the case of Indore Development Authority Vs.
Manoharlal and Ors. reported in (2020) 8 SCC 129, however, we
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are not much concerned with Sub-section 2 of Section 24 of the Act,
2013.
17. Sub-section (1) of Section 24 of the Act, 2013 would be of
relevance only to ascertain as to whether land acquisition
proceedings were initiated under the Act, 1894 in the case at hand or
not so as to consider as to how far, if at all, Section 24 of the Act,
2013 would apply and if it does not apply, then, what would be the
consequence upon validity of the acquisition proceedings initiated
under the Act, 1894, if it was done after 01.01.2014; whether it would
be ab initio void .
18. In this context we have considered the scheme of the Act,
1894 to ascertain as to what is the point of initiation of acquisition
proceedings under the said enactment in the light of various
decisions on the subject. In this context we may refer to Part II of the
Act, 1894, the heading ‘Acquisition’ and the sub-heading ‘Preliminary
Investigation’ . Section 4 occurring in the said part reads as under:-
“ 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 (the last of the dates of such publication
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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. ”
19. On a bare reading of the aforesaid provision what comes out is
that 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
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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 referred to thereafter as the date of publication of the
notification), meaning thereby, the date of last of the three notices/
publications referred earlier would be the date of publication of the
notification under Section 4(1) of the Act, 1894.
20. It is only thereafter that it shall be lawful for any officer, either
generally or specially authorized by such Government in this behalf,
and for his servants or 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. The aforesaid is evident from a reading of Sub-section (2) of
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Section 4 of the Act, 1894, therefore, any preliminary investigation as
to the investigation can be undertaken by any officer of the
appropriate Government only after the date of publication of
notification under Section 4(1) of the Act, 1894 which has to be last
of the dates of such publication and the giving of public notice as
referred therein. Prior to the aforesaid, it can not be said that the
land acquisition proceedings have been initiated.
21. Thereafter, under Section 5 of the Act, 1894 the officer so
authorized shall at the time of such entry pay or tender payment for
all necessary damage to be done as aforesaid, and, in case of
dispute as to the sufficiency of the amount so paid or tendered, he
shall at once refer the dispute to the decision of the Collector or
other Chief Revenue Officer of the district, and such decision shall
be final.
22. Section 5-A of the Act, 1894 deals with objections to the
acquisition of land or of any land in the locality and the procedure for
hearing and disposal of such objections.
23. Section 6 of the Act, 1894 deals with declaration of intended
acquisition. According to Sub-section (1) of Section 6 subject to the
provisions of Part VII of the Act, 1894 when the appropriate
Government is satisfied, after considering the report, if any, made
under section 5-A sub-section (2), that any particular land is needed
for a public purpose, or for a Company, a declaration shall be made
to that effect under the signature of a Secretary to such Government
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or of some other officer duly authorised to certify its orders, and
different declarations may be made from time to time in respect of
different parcels of any land covered by the same notification under
Section 4 sub-section (1), irrespective of whether one report or
different reports has or have been made (wherever required) under
section 5-A sub-section (2). Other provisions are also contained in
Section 6 which are not very relevant for our purposes.
24. The question as to when are land acquisition proceedings
initiated under the Act, 1894, including the question as to whether
such initiation is by a notification under Section 4(1) or on a
declaration under Section 6 of the Act, 1894, has been considered in
various decisions.
25. In Indrapuri Griha Nirman Sahkari Samiti Ltd. Vs. State of
Rajasthan reported in (1975) 4 SCC 296 a Constitution Bench of
Hon’ble the Supreme Court held that land acquisition proceedings
commence with the notification under Section 4 of the Act. Though,
the Constitution Bench in the said case was considering the
Rajasthan Land Acquisition Act, however, another Bench of Hon’ble
the Supreme Court in the case of Laxman Lal v. State of Rajasthan
reported in (2013) 3 SCC 764 has held that Section 4 of the
Rajasthan Land Acquisition Act is identical to Section 4 of the Act,
1894, just as Section 6 thereof is similar to Section 6 of the Act,
1894, therefore, the aforesaid declaration by the Constitution Bench
in the context of Section 4 of the Rajasthan Land Acquisition Act
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would apply on all its fours to the scheme of the Act, 1894 as has
been held by a three Judges Bench of Hon’ble the Supreme Court in
a case (2023) 6 SCC 512 ; Haryana State Industrial and
Infrastructure Development Corporation Ltd. and Ors. Vs.
Deepak Aggarwal and Ors. Para 17 and 18 of the judgment in the
case of Deepak Aggarwal (supra) are quoted hereinbelow:-
“ 17. In Indrapuri Griha Nirman Sahakari Samiti
case a Constitution Bench held thus: (SCC p. 297,
para 12)
“12. Land acquisition proceedings commence
with the notification under Section 4 of the Act.”
It is true that the Constitution Bench in Indrapur
case was not considering the question whether it is
issuance and publication of a notification
under Section 4(1) of the LA Act or the declaration
that the land is required for public purpose
under Section 6 of the LA Act, that tantamounts to
initiation or commencement of the land acquisition
proceedings under the LA Act. In fact, the
Constitution Bench was considering the challenge
against the notifications under Sections 4 and 6 of
the Rajasthan Land Acquisition Act, 1953. But then,
a two-Judge Bench of this Court in Laxman Lal v.
State of Rajasthan held that LA Act and Section 6 of
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Rajasthan Land Acquisition Act is similar to Section
6 of the L.A. Act.
18. Therefore, the declaration of the position
of Section 4 of the LA Act by the Constitution of
Bench in Indrapur case that land acquisition
proceedings commence with the notification
under Section 4 of the Act cannot be ignored neither
on the ground that it was held so while considering
the said provisions in the Rajasthan Land
Acquisition Act nor on the ground that it was not
made upon consideration of the question as to
whether it is Section 4 or Section 6 of the LA Act
that marks the point of initiation of land acquisition
proceedings under the LA Act.”
26. In V.K.M. Kattha Industries (P) Ltd. Vs. State of Haryana
reported in (2013) 9 SCC 338 after considering the provisions of
Sections 4, 5-A and 6 of the Act, 1894, a three Judges Bench of
Hon’ble the Supreme Court held that among the above provisions,
Section 4 of the Act empowers the appropriate Government to
initiate proceedings for the acquisition of land. It was so held while
considering the contention of the appellant that publication of
notification under Section 4(1) of the Act, 1894 was not in
accordance with the mandate provided in the statute and while
looking into the scheme of the Act, 1894 for answering the same.
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27. The Supreme Court of India in an earlier decision reported in
AIR 1967 SC 1704; Khub Chand and Ors. Vs. State of Rajasthan
and Ors. held that the notification/ public notice referred in Section 4
of the Act, 1894 was mandatory and that the provisions of a statute
conferring power on the Government to compulsorily acquire lands
have to be strictly construed. Noticing the language used in Section
4 Sub-section (1) of the Act, 1894 it held that the object underlying
the said provision is obvious. Under Sub-section (2) of Section 4 of
the Act, after such a notice was given as is referred in Sub-section
(1) of Section 4, the officer authorised by the Government in that
behalf could enter the land and interfere with the possession of the
owner in the manner prescribed thereunder. The legislature thought
that it was absolutely necessary that before such officer can enter
the land of another, the owner thereof should have to clear notice of
the intended entry which is obviously a reference to the notice under
Sub-section (1) of Section 4.
28. It was further observed in Khub Chand (supra)– the fact that
the owner may have notice of the particulars of the intended
acquisition under Section 5(2) does not serve the purpose of Section
4, for such a notice shall be given after the appropriate officer or
officers enter the land and submit the particulars mentioned in
Section 4. The objects of the two sections was held to be different.
The object of one, section 4(1), was to give intimation to the person
whose land is sought to be acquired, of the intention of the officer to
enter his land before he does so and that of the other [Section 4(2)]
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was to enable him to know the particulars of the land which is sought
to be acquired. The Supreme Court emphasized the use of the word
“thereupon and shall be lawful” under Section 4(2) to hold that the
said expression indicated that unless such a public notice [as is
referred in Section 4(1)] is given, the officer or his servants cannot
enter the land. It is a necessary condition for the exercise of the
power of entry.
29. In this context it considered an earlier Constitution Bench
decision rendered in the case of Babu Barkya Thakur Vs. State of
Bombay reported in AIR 1960 SC 1203 as also the issue involved in
the said case as to whether an omission in the notification under
Section 4 to mention the public purpose could be validated by a
subsequent declaration in Section Section 6 under the Act, 1894 and
held that observations made in the said case can not be an authority
for the position that, if a public notice of the notification was not given
as prescribed in Section 4, it can be ignored. From a reading of the
judgment in Khub Chand (supra) it is evident that it is a notification
under Section 4(1) which is starting point of acquisition proceeding
under the Act, 1894.
30. In the case of Deepak Aggarwal (supra) also the Supreme
Court considered the decision of Babu Barkya Thakur’s case
(supra) as referred in a subsequent decision in M/s Fomento
Resorts And Hotels Ltd. Vs. Gustavo Ranato Da Cruz Pinto and
Others reported in (1985) 2 SCC 152, and held that a careful
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scanning of all the decisions cited by both sides would thus reveal
that all those decisions hold that land acquisition proceedings under
the L.A. Act begin with the publication of a notification under sub-
section (1) of Section 4. A declaration under Section 6 of the L.A. Act
is one of the steps under the L.A. Act which ultimately culminates
into the conclusion of the proceedings by making an award and
taking over possession of the acquired land. A declaration
under Section 6 cannot be made without holding an inquiry unless
urgency clause under Section 17 is applied. Publication of a
notification under sub-section (1) of Section 4 of the L.A. Act is
condition precedent for taking further steps. Hence, such a
notification is the starting point of acquisition proceedings under
the L.A. Act. The initiation of the proceedings is by the publication of
the notification under sub-section (1) of Section 4 of the L.A. Act.
Thus, it clearly opined that a notification under Section 4(1) of the
Act, 1894 is the starting point of the acquisition proceeding under the
said enactment and that initiation of proceedings is by publication of
the notification under Section 4(1) of the Act, 1894.
31. Thereafter, in the case of Deepak Aggarwal (supra) it
proceeded to consider the meaning of the word ‘initiated’ used in
Section 24(1) of the Act, 2013 keeping in mind the context in which it
has been used and also keeping in mind the law that all
interpretations must subserve and help implementation of the
intention of the Act concerned. After referring to the object behind
enactment of the Act, 2013, Article 300-A etc. and also taking into
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consideration the dictionary meaning of the word ‘initiated’ as
defined in Webster’s Third New International Dictionary and Shorter
Oxford English Dictionary, it opined as under:-
he words ‘initiate’ or ‘initiated’ are not defined under
“ 33. T
the LA Act and also under the 2013 Act. Hence, to ascribe its
meaning the dictionary meaning of the word has to be looked
into. In Webster’s Third New International Dictionary, the word
“initiate” has inter alia been defined thus:
“to begin or set going: make a beginning of: perform or
facilitate the first actions, steps, or stages of:”
In Shorter Oxford English Dictionary the word “initiate” is
defined as:
“to begin, commence, enter upon, to introduce, set
going, originate.”
34. In the light of the above discussion and taking note of the
legislative intention we have no hesitation to hold that the
point of initiation of land acquisition proceedings under the LA
Act for the purpose of Section 24(1) of the 2013 Act, is
issuance and publication of Section 4(1) notification in the
Official Gazette of the appropriate Government.
35. We think it only befitting to supplement further reasons for
supporting our conclusion as above. A perusal of Section 4 of
the LA Act would reveal that a preliminary Notification
under Section 4(1) is issued whenever it appears to the
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appropriate Government that land in any locality is needed or
likely to be needed for any public purpose. The said formal
expression of the decision takes concrete shape and forms
only on its publication in the Official Gazette. It is only upon
issuance and publication of a notification under Section
4(1) that any officer, either generally or specially authorised by
the appropriate Government and his servants and workmen
could lawfully enter upon and survey and take levels of any
land in such locality in terms of sub-section (2) thereof.
36. In the circumstances, it is only worthy to refer to Section
4 of the LA Act as a whole. They read thus:
“ 4. Publication of preliminary notification and power
of officers thereupon. – (1) Whenever it appears to the
[appropriate Government] the 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)].
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(2) Thereupon it shall be lawful for any officer, either
generally or specially authorized by such Government in
this behalf, and for his servants and workman, -
to enter upon and survey and take levels of any
land in such locality;
to dig or bore into 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 crop, fence
or jungle;”
37. Section 4(2) would reveal that besides entering upon and
surveying and taking levels of any land in the locality
concerned, the officer authorised by the Government through
the Notification is also empowered to dig or bore into the sub-
soil, to do all other acts necessary to ascertain whether the
land is adapted for all purposes; to set out the boundaries of
the land proposed to be taken and the intended line of work (if
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any) proposed to be made thereon; to mark such levels,
boundaries and line by placing marks and cutting trenches
and such other activities mentioned under sub-Section (2)
thereof. In such circumstances, the fact is that it is the
issuance and publication of Section 4(1) notification that will
empower the authorised officer and workmen to enter into and
do such permissible acts and activities. This fact was noted in
Babu Barkya Thakur’s case as well.
38. In Shiv Kumar Vs. Union of India a three-Judge Bench of
this Court held that a purchaser of land in respect of which
notification under Section 4(1) of the LA Act issued and
published (after the issuance of Section 4 notification under
the LA Act) did not acquire any right in the land concerned and
such sale is ab initio void and such a person would have no
right to claim that land under the policy of law. Section 23 of
the LA Act deals with matters to be considered in determining
compensation. Going by the said provision, the market value
of the land in question was to be decided taking the market
value at the date of the publication of the notification
under Section 4. Going by the settled position, a vital defect in
the Section 4(1) notification under the LA Act cannot be cured
by issuing and publishing a declaration under Section 6 of the
LA Act and in such circumstances, it would entail annulment of
both the notifications and also the acquisition proceedings. All
the aforesaid aspects would reveal that issuance and
publication of a valid Section 4(1) Notification, was the
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foundation for acquisition of land in any locality under the LA
Act. All the above reasons will fortify our conclusion and justify
the rejection of the contention that Section 4(1) notification is
nothing but a mere formality and got no real relevance or
importance in the process of land acquisition under the LA
Act.
”
32. The aforesaid decision in Deepak Aggarwal (supra) is relevant
to the question before us as it helps us understand the date/ point of
initiation of acquisition proceedings under the Act, 1894.
33. We may in this context also refer to a decision reported in
(1985) 3 SCC 1; Collector (District Magistrate) Allahabad and
Anr. Vs. Raja Ram Jaiswal , wherein, the decision in the case of
Khub Chand (supra) was considered. Raj Ram Jaiswal’s case
(supra) noticed that Khub Chand’s case (supra) distinguished the
decision in Babu Barkya Thakur (supra) and it approved the
statement contained in Somavanti Vs. State of Punjab reported in
AIR 1963 SC 151 that a valid notification under Sub-section (1) of
Section 4 is a condition precedent to the making of a declaration
under sub-section (1) of Section 6. Hon’ble the Supreme Court in
Raj Ram Jaiswal’s case (supra) observed that this view had been
consistently followed and was approved in State of Mysore Vs.
Abdul Razak Sahib reported in (1973) 3 SCC 196 , wherein, it was
observed that “in the case of a notification under Section 4 of the
Land Acquisition Act, the law has prescribed that in addition to the
publication of the notification in the Official Gazette, the Collector
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must also give publicity of the substance of the notification in the
concerned locality. Unless both these conditions are satisfied,
Section 4 of the Land Acquisition Act cannot be said to have been
complied with. The publication of a notice in the locality is a
mandatory requirement”.
34. Para 16 of Raja Ram Jaiswal ‘s case (supra) is relevant in the
context of the issues involved before us and it reads as under:-
“ 16. Assuming that a notification in the Official Gazette is a
formal expression of the decision of the Government, the
decision of the Government is hardly relevant, unless it takes
the concrete shape and form by publication in the Official
Gazette. Where a decision of the Government to be effective
and valid has to be notified in the Government Gazette, the
decision itself does not become effective unless a
notification in the Official Gazette follows. In Mahendra Lal
Jaini v. The State of Uttar Pradesh & Ors. (2) it was held that
a notification under Sec. 4A of the Indian Forest Act, 1927 is
required to be published in the Gazette and unless it is so
published, it is of no effect. Logically, the same view must be
adopted for a notification under Sec. 4 . Therefore assuming
that a notification is a formal expression of a decision of the
Government to acquire land, unless the decision is notified in
the Government Gazette by an appropriate notification, the
proceedings for acquisition cannot be said to have been
initiated and the decision would remain a paper
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decision. Sec. 4 (1) further requires that 'the Collector shall
cause public notice of the substance of such notification to
be given at convenient places in the said locality.' The
expression 'such notification.' in the latter part of Sec. 4
(1) and sequence of events therein enumerated would
clearly spell out that first the Government should reach a
decision to acquire land, then publish a notification
under Sec.4 (1) and simultaneously or within a reasonable
time from the date of the publication of the notification cause
a notice to be published containing substance of such
notification meaning thereby that notification which is
published. Obviously, therefore, there cannot be a
publication in the locality prior to the issuance of the
notification. The submission of Mr. Kacker does not
commend to us.
”
35. Clearly, Hon’ble the Supreme Court held that even assuming
that a notification under Section 4(1) is a formal expression of a
decision of the Government to acquire land, unless the decision is
notified in the Government Gazette by an appropriate notification,
the proceedings for acquisition cannot be said to have been initiated
and the decision would remain a paper decision. It considered the
language used in Sub-section (1) of Section 4 and the sequence of
events enumerated therein to hold that same clearly spelt out that
first the Government should reach a decision to acquire land, then
publish a notification under Section 4 (1) and simultaneously or
within a reasonable time from the date of the publication of the
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notification cause a notice to be published containing substance of
such notification meaning thereby that notification which is
published. Obviously, therefore, there cannot be a publication in the
locality prior to the issuance of the notification. This is relevant in the
context of the assertion of the opposite parties that the notification
under Section 4(1) is dated 27.12.2013 and is prior to coming into
force of the Act, 2013 i.e. prior to 01.01.2014, because preparing a
notification and keeping it on file by itself is of no legal significance
with regard to initiation of acquisition proceedings under the Act,
1894 and it would at best be remain a paper decision as held by in
the case of Raja Ram Jaiswal (supra).
36. In the case of Narendrajit Singh and Anr. Vs. State of U.P.
and Anr. reported in (1970) 1 SCC 125 also the Supreme Court in a
matter arising out of a decision of the Allahabad High Court, held,
after considering the provisions of the Act, 1894, that the process of
acquisition must start with a notification under Section 4. Issuance of
notification under Section (1) of Section 4 is a condition precedent to
the exercise of any further powers under the Act.
37. In a decision reported in (2002) 7 SCC 712; Urban
Improvement Trust, Udaipur Vs. Bheru Lal & Ors. the Supreme
Court also held that from the different phraseology used in Sections
4(1) and 6(1), it is apparent that under Section 4(1) publication in the
Official Gazette is a condition precedent for acquiring the land. It
further observed in Paragraph 18 that if the decision taken by the
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Government to acquire the land is not notified in the Official
Gazette , the said decision will be of no effect. Section 4 of the Act,
1894 mandates that 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 acquisition
process starts after publication of the notification in the Official
Gazette under Section 4(1), therefore, publication of the notification
under Section 4(1) being a condition precedent for acquisition of
land, the said date is required to be taken into consideration for
counting the period of limitation of one year and the previous
publication of notices in the newspapers were rightly ignored by the
High Court. This decision also holds that publication of notification
under Section 4(1) in the Official Gazette is starting point of
acquisition under the Land Acquisition Act, 1894.
38. A Full Bench of Bombay High in the case of Sandeep S.
Metange and Ors. Vs. State of Maharasthra and Ors. reported in
2022 (1) Mh.L.J. 146 also had the occasion to consider the point of
initiation of acquisition proceedings under the Act, 1894 and after
considering a catena of decisions of the Supreme Court, it ultimately
opined that publication of preliminary notification under Section 4 of
the Act, 1894 amounts to initiation of land acquisition proceedings for
the purposes of Section 24(1) of the Act, 2013.
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39. We may in this very context refer to a Division Bench
Judgment of Delhi High Court reported in 1991 SCC OnLine Del
784; Universal Cans & Containers Ltd. Vs. Union of India ,
wherein, the question which fell for consideration was, what would
be the date of notification of the Official Gazette which take effect;
whether it is the date on which the Official Gazette is printed or the
date when it is issued to the public? This question arose in the
context of the exemption notification under Section 25 of the
Customs Act, 1962. Considering the language of the said provision
the Division Bench opined that the Central Government is to inform
the general public, or the trading community in particular, as to the
exemption notification or its withdrawal. That can only be done if the
Official Gazette is made available to the general public. The word
"notification" in ordinary parlance means the act of notifying or giving
notice; notice given in words, or anything which communicates
information. It opined that the notification had to be in writing and
had to be published in the Official Gazette. The word "publish",
according to the New Webster's Dictionary of English Language ,
means "to cause to be printed and offer for sale to the public, as a
newspaper, book, magazine, or the like; to make public; to make
known to public in general; to promulgate." According to the Concise
Oxford Dictionary , the word "publish" means "make generally known;
announce formally; promulgate; issue copies of (book, engraving,
etc.) for sale to the public; and the word "notification" is the act of
30
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notifying which means "make known, announce, reiterate, inform,
give notice to."
40. The Division Bench then opined, what is the use of the Official
Gazette which is lying in the printing press of the Government of
India or any Government Department and is not made known to the
public who are to be affected by such a Gazette. It opined that
principle “ignorance of law is no excuse” can not be invoked unless
the law is made public. It opined that the date on which the Official
Gazette is made available to the public that matters, and not the date
on which it is shown to have been printed. These observations apply
to the case at hand also, as, merely printing the date 27.12.2013 on
the notification by itself meant nothing unless it was published in the
Official Gazette.
41. The above discussion clarifies the law on the issue of date/
point of initiation of acquisition proceedings under the Act, 1894.
42. Now, in the case at hand not only the publication in the
newspapers but also in the Official Gazette as well as public notice
in the locality was done after 01.01.2014 i.e. after the Act, 2013 had
come into force and by virtue of Section 114 thereof the Act, 1894
had already been repealed, meaning thereby, the aforesaid
notifications/ publications/ public notice was done under Section 4(1)
of a repealed Act i.e. the Act, 1894.
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43. Legal position is settled that “Repeal” cannotes abrogation or
obliteration of one statute by another, from the statute book as
completely as if it had never been passed. When the Act is repealed,
it must be considered, subject to saving clause, if any, as if it had
never existed. Legal position in this regard has been elucidated in a
judgment reported in (1975) 3 SCC 512; India Tobacco Co. Ltd.
Vs. Commercial Tax Officer, Bhavanipur and Ors., (2000) 2 SCC
536; Kolhapur Canesugar Works Ltd. Vs. Union of India and
(1997) 1 SCC 650; Gajraj Singh Etc. Vs. The State Transport
Appellate Tribunal and Ors.
44. The effect of Section 6 of the General Clauses Act, 1897
(hereinafter referred to as ‘the Act, 1897’) came up for consideration
before Hon’ble Supreme Court in a case reported in (2008) 12 SCC
112; State of Punjab and Ors. Vs. Bhajan Kaur and Ors., wherein,
after noticing the said provision it was observed that section 6 of the
General Clauses Act, inter alia, saves a right accrued and/ or a
liability incurred. It does not create a right. When Section 6 applies
only an existing right is saved thereby. The existing right of a party
has to be determined on the basis of the statute which was
applicable and not under the new one. If a new Act confers a right, it
does so with prospective effect when it comes into force, unless
expressly stated otherwise.
45. In the facts and circumstances noticed earlier Section 6 of the
Act, 1897 does not save the impugned proceedings because no
32
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proceedings were validly initiated under the Act, 1894 prior to
01.01.2014, therefore, there was nothing which could be saved
under Section 6.
46. Section 24 of the Act, 2013 also does not apply nor does it
save the acquisition proceedings impugned herein because there
was no initiation of such proceedings under the Act, 1894 on or
before 01.01.2014.
47. As, there was no initiation of land acquisition proceedings
under the Act, 1894 while it was in operation i.e. prior to its repeal on
01.01.2014, therefore, there is no question of its saving whether
under Section 24 of the Act, 2013 or under Section 114(2) of the said
Act read with Section 6 of the Act, 1897.
48. In fact, as stated earlier it is a case of initiation of acquisition
proceedings after 01.01.2014 under a repealed enactment i.e. the
Act, 1894, therefore, the impugned notifications etc. are apparently
and fundamentally erroneous in the eyes of law and ab initio void .
49. In view of the above discussion, it can not be said that the land
acquisition proceedings under the Act, 1894 were initiated prior to
01.01.2014 merely because the notifications bore the date
27.12.2013, as would be evident from the law clarified and declared
judgment of Hon’ble the Supreme Court in the case of Raja Ram
Jaiswal (supra) and Bheru Lal (supra). The decision to initiate
acquisition proceedings and the notification in this regard unless they
33
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are notified and published in the gazette etc. have no meaning in the
eyes of law and at best can only be treated as a decision on paper,
nothing more. The date on the notification is irrelevant. What is
relevant is the date of publication in the newspapers, notification in
the Official Gazette and the public notice referred in Section 4(1) and
most importantly, the last of these dates which alone is to be treated
as the date of publication of the notification under Section 4(1) of the
Act, 1894. As, all these dates are subsequent to 01.01.2014,
therefore, apparently, the notifications are a nullity in the eyes of law,
as, the provisions under which they have been published/ notified
etc. was non existent on the relevant dates of such publication etc.,
having been repealed prior to it. The purport of repeal has already
been discussed earlier which need not be reiterated. In fact, in the
case at hand not only the date of notification under Section 4(1) but
also the date of notification/ declaration under Section 6 read with
Section 16 is subsequent to 01.01.2014 and all the proceedings
under Act, 1894 have been held after 01.01.2014, therefore, the
entire acquisition proceedings are a nullity in the eyes of law as they
have neither been initiated nor undertaken under the Act, 2013 which
was the law applicable on and after 01.01.2014. The contentions of
Shri Chandra to the contrary are rejected.
50. In Para 21 and 24 of the writ petition it has been specifically
averred by petitioner that physical possession of the land in question
has not been taken from the petitioner by opposite parties and this
averment has not been denied specifically in counter affidavit of
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opposite party no. 4- Special Land Acquisition Officer and the
Development Authority. It is also accepted to opposite party no. 4
that til date compensation has not been paid to the petitioner as
there are several co-sharers etc., though, the amount as per the
Development Authority has been deposited.
51. On account of impugned action, the compensation, though,
determined in terms of the Act, 2013, has been determined on the
basis of date of notification under Section 4(1) of the Act, 1894
issued in January/February, 2024, which, as held by us, is illegal.
Moreover, we are now in 2026 and petitioner is still in actual
possession of the land.
52. We have also gone through the Statement of object and
reason of the Act, 2013 and its scheme and we find that the Act,
2013 is a much more beneficial legislation from the point of view of
the land owner and affected family etc. and one of the objects which
it seeks to achieve is just and fair compensation to such land owners
but in the case at hand for the reasons already given hereinabove,
the acquisition proceedings have not taken place in terms of the Act,
2013 but have taken place under a repealed enactment i.e. the Act,
1894 thereby causing grave prejudice to the petitioner and violating
his right under Article 14, 300A of the Constitution of India apart from
those available under the Act, 2013.
53. So far as delay in filing of the writ petition is concerned, no
doubt the notifications impugned were issued in 2013 and the award
35
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was initially rendered in 2016, but same was amended in 2022. In
any case considering the fundamental flaw as noticed, when the
proceedings themselves are a nullity in the eyes of law and also
considering the fact that possession is still with the petitioner, further,
the public purpose for which the acquisition was made having not
been achieved in the sense that the construction of 45 meter wide
road has not taken place till date even after lapse of 12 years and
the illegality being so fundamental it can not be cured nor get
validated by mere lapse of time, therefore, this is not a factor which
could persuade us to dismiss the writ petition in the facts of this case
on the point of delay. The fact that acquisition proceedings have not
been completed even after 12 years is itself a factor which goes
against the opposite parties. The objection of Shri Chandra in this
regard is not acceptable in the facts of this case.
54. The logical consequence of the above discussion and our
findings on the issues involved would be to quash the entire
acquisition proceedings but we can not be unmindful of the fact that
acquisition proceedings are for construction of a 45 meter public
road i.e. for a public purpose, though, they have remained pending
since 2014. The total land which has been acquired is only about
2.737 hectares which is not a large tract of land and as regards the
land of the petitioner which is part of acquired land, it is only 0.5020
hectares, therefore, we are of the opinion that instead of quashing
the acquisition proceedings equities need to be balanced in a way so
that on the one hand the public purpose behind the acquisition is not
36
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defeated and on the other hand the violation of valuable rights of the
petitioner is suitably compensated. This can be done if the
concerned opposite parties pay compensation under the Act, 2013 to
the petitioner based on the rates etc. acceptable as on date of this
judgment and not on the basis of date of the impugned notification of
2014 under Section 4(1) referred earlier. It is ordered accordingly.
The compensation determined under the relevant award shall be
redetermined and paid to the petitioner under the Act, 2013 in the
light of the judgment, within a period of three months. The opposite
parties shall not take possession of the land unless compensation is
recalculated and paid as above. The entire acquisition proceedings
shall be completed within 6 months.
55. With the aforesaid observations, the writ petition is disposed
of.
(Manjive Shukla,J.) (Rajan Roy,J.)
July 3, 2026
R.K.P.
Digitally signed by :-
RAJ KUMAR PATEL
High Court of Judicature at Allahabad,
Lucknow Bench