Full Judgment Text
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PETITIONER:
THE LAND ACQUISITION OFFICER, HYDERABAD URBANDEVELOPMENT AUT
Vs.
RESPONDENT:
MOHD. AMRI KHAN & ORS. ETC. ETC.
DATE OF JUDGMENT30/09/1985
BENCH:
BHAGWATI, P.N. (CJ)
BENCH:
BHAGWATI, P.N. (CJ)
PATHAK, R.S.
SEN, AMARENDRA NATH (J)
CITATION:
1985 SCR Supl. (3) 152 1986 SCC (1) 3
1985 SCALE (2)779
ACT:
Land Acquisition Act, 1894, Section 4(1) and Land
Acquisition (Andhra Pradesh Amendment and Validation) Act,
1983, Sections 3(1) and 2 - Acquisition of Land -
Publication of Notification in Official Gazette and public
notice in the locality - Whether both should be simultaneous
or immediately after one another - Amended Section 4(1)
laying down the limit of the time gap to 40 days with
retrospective effect - Delay of over two months in the issue
of public notice - Whether invalidates the Notification.
HEADNOTE:
The Government of Andhra Pradesh issued a Notification
under Section 4 sub-sec. (1) of the Land Acquisition Act,
1894 for acquiring certain land for the purpose of the
Hyderabad Urban Development Authority (HUDA) and published
it in the Andhra Pradesh Gazette on 4th August, 1977. Public
notice of the substance of the Notification was given at
convenient places in the locality, after a period of about 2
months, on 3rd Oct., 1977. On 10.1.1979, the State
Government issued another Notification under Section 6 of
the Act excluding some land and declaring that the remaining
area af land was needed for the purpose of HUDA. The Land
Acquisition Officer made an Award on 27th July 1981 and
issued notices to the respondents to deliver possession of
the land comprised in the area notified under Section 6 of
the Act. The respondents challenged the validity of the
aforesaid Notifications in a writ petition before the High
Court. The High Court, following an earlier Full Bench
decision dated 3rd December, 1982, allowed the writ petition
on the ground that local publication of the substance of the
Notification under sec. 4 sub-sec.(1) was not made on the
same day on which the Notification was published in the
Official Gazette and, therefore, the Notification under
Section 4 sub-sec.(1) was invalid and the Notification under
Section 4 sub-section (1) being the foundation of the
jurisdiction to proceed further with the acquisition, the
Notification under Section 6 must also fail.
153
Subsequent to the delivery of the judgment by the High
Court, the Supreme Court in Deepak Pahwa v. Lt. Governor
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Delhi Ors. [1984] 4 SCC 308 held that there is nothing in
sub-sec. (1) of Section 4 which requires that the
publication in the Official Gazette and public notice in the
locality must be simultaneous or immediately after one
another, but there should not be a large gap between
publication in the Gazette and public notice in the locality
as would be indicative of break in the continuity of action.
However, before the decision in Deepak Pahwa’s case, the
Andhra Pradesh Legislature passed the Land Acquisition
(Andhra Pradesh Amendment (Validation) Act 1983 (For short,
the Amending Act) with retrospective effect from 12th Sept.,
1975. Sub-section (1) of section 4 of the Act after the
amendment provided that the collector shall, within forty
days from the date of publication of such Notification,
cause public notice of the substance of such Notification to
be given at convenient places in the locality.
In appeals to the Supreme Court, the appellant argued
(i) that the Legislature proceeded on the assumption that
the Full Bench Judgment of the Andhra Pradesh High Court
represented the correct law on the subject and it was on
that assumption that the Amending Act was enacted by the
Legislature. If, on the Full Bench Judgment of the Andhra
Pradesh High Court being reversed by the Supreme Court in
Deepak pahwa’s case, the assumption made by the Legislature
turned out to be incorrect and it was found that the
Legislature proceeded on an erroneous view of the law in
enacting the Amending Act, the Amending Act, must be
considered superfluous and not the Amending Act, but the
correct law as it prevailed prior to the Amending Act must
be applied; and (ii) that the legislature enacted the
Amending Act for the purpose of validating acquisitions made
after 12th September, 1975 which were liable to be declared
invalid on account of the Full Bench Judgment of the Andhra
Pradesh High Court and it could never have been the
intention of the Legislature to invalidate, acquisitions
which were valid when made and therefore section 2 of the
Amending Act which introduced the amendment in sub-s. (1) of
sec. 4 should not be read as having retrospective effect,
but should be construed as prospective in operation.
Dismissing the appeals,
^
HELD: (i) The retrospective amendment made by the
Amending Act in sec. 4 sub-sec. (1) of the Act completely
invalidates the Notifications under sec. 4 sub-s. (1) and
sec. 6 issued by the
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Andhra Pradesh Government and the Judgment of the High Court
quashing these Notifications has therefore to be sustained
though on a ground different from that which found favour
with the High Court. Whatever be the reason for which the
Legislature enacted the amending Act, the Amending Act is on
the Statute book and is in force with effect from 12th
Sept., 1975 and it must be given effect according to the
plain natural meaning of its words. There can be no ground
for denying to the amendment in sub-s. (1) of sec. 4
retrospective effect, which sub-s. (3) of sec. 1 of the
Amending Act expressly directs that it shall have. In fact,
there is no inconsistency between the mandate of sub-s. (1)
of sec. 4 and the law as declared by Supreme Court in Deepak
Pahwa’s Case. What the amended sub-sec. (1) of sec. 4 does
is to legislatively lay down the limit of the time gap
beyond which it must be presumed that there is a break in
the continuity of action. [155 B-C; 159 F-G; 160 C-D]
1. (ii) The requirement laid down in sub-s. (1) of sec.
4 as it stood from and after 12th Sept., 1975 would
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obviously apply to every Notification under sub-s. (1) of
sec. 4 issued by the appropriate Government on or after 12th
Sept., 1975. If in case a Notification issued under sec. 4
sub-sec. (1) on or after 12th Sept., 1975 public notice of
the substance of such Notification is not given in the
locality within forty days from the date of publication of
such notification in the Official Gazette, it would
introduce a fatal infirmity invalidating such notification.
[158 D-F]
JUDGMENT:
CIVIL APPELLATE JURISDICTION : Civil Appeal Nos. 5839-
42 of 1983.
From the Judgment and Order dated 2.3.1983 of the
Andhra Pradesh High Court in W.P. No. 5538,5563,5644 and
5722 of 1981.
P.P. Rao, T.V.S.N. Chari and Ms. V. Grover for the
Appellant in C.A. No. 5839 of 1983.
T.V.S.N. Chari and Ms. V. Grover, for the Appellant in
C.A. Nos. 5840-42 of 1983.
R.P. Bhatt, K. Rajendra Choudhary and K.S. Choudhury
for the Respondent in C.A. No. 5839 of 1983.
K. Rajendra Choudhury and K.S. Choudhury for the
Respondent in C.A. Nos. 5840-42 of 1983.
155
The Judgment of the Court was delivered by
BHAGWATI, C.J. These appeals by special leave would
have perhaps met with a different fate if the Land
Acquisition Act, 1894 in its application in the State of
Andhra Pradesh had not been amended by the Land Acquisition
(Andhra Pradesh Amendment and Validation) Act, 1983
(hereinafter referred to as the amending act) with
retrospective effect from 12th September, 1975. The
retrospective amendment made by the Amending Act in section
4 Sub-sec. (1) of the Act completely invalidates the
Notifications under Sec. 4 Sub-sec.(1) and Sec. 6 issued by
the Andhra Pradesh Govt. and the Judgment of the High Court
quashing these Notifications has therefore to be sustained.
The facts giving rise to these appeals are few and may be
briefly stated as follows:
The Government of Andhra Pradesh issued a Notification
under Sec. 4 Sub-sec.(1) stating that a total area of 35
acres and 35 gunthas was likely to be needed for the purpose
of the Hyderabad Urban Development Authority (hereinafter
referred to as (HUDA.) The Notification was published in the
Andhra Pradesh Gazette on 4th August, 1977 and public notice
of the substance of the Notification was given at convenient
places in the locality, after a period of about 2 months, on
3rd Oct. 1977. Thereafter an inquiry under Sec. 5-A of the
Act was held by the Special Land Acquisition Officer and as
a result of the inquiry, the Andhra Pradesh Govt. decided to
exclude an area of 6 acres 6 gunthas belonging to one Gaytri
Devi Co-operative Housing Society and issued a Notification
under Sec. 6 of the Act on 10th January, 1979 declaring that
the remaining area of land admeasuring 29 acres 29 gunthas
was needed for the purpose of (HUDA). Notices under Sec. 9
were then issued to the respondents in these appeals who are
the owners of different parcels of land comprised in the
area notified under Sec. 6 and after holding an inquiry, the
Special Land Acquisition Officer made an Award on 27th July,
1981 and issued notices to the respondents calling upon them
to deliver possession of the land acquired. The respondents
thereupon filed writ petition in the High Court of Andhra
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Pradesh challenging the validity of the Notifications under
Sec. 4 Sub-sec. (1) and Sec. 6 issued by the Andhra Pradesh
Government.
There were several contentions raised on behalf of the
respondents against the validity of the impugned
Notifications but, barring one, all were rejected by the
High Court. The one contention which found favour with the
High Court was that local
156
publication of the substance of the Notification under Sec.
4 Sub-sec. (1) was not made on the same day on which the
Notification was published in the Official Gazette, but it
was made almost 2 months later and the Notification under
Sec. 4 Sub-sec. (1) was therefore invalid and the
Notification under sec. 4 Sub-sec.(1) being the foundation
of the jurisdiction to proceed further with the acquisition,
the Notification under Sec. 6 must also fail. The High
Court, following an earlier Full Bench decision rendered by
it on 3rd December, 1982 in Writ Petition No. 5722 of 1981
and other allied writ petitions accepted this contention and
quashed the notifications under Sec. 4 Sub-Sec. (1) and Sec.
6. The Land Acquisition Officer representing the State
thereupon preferred the present appeals with special leave
obtained from this Court.
The principal question which would seems to arise in
these appeals is as to whether the High Court was right in
taking the view that on a true interpretation of Sec. 4 Sub-
sec.(1) public notice of the substance of the Notification
under that section must be given in the locality on the same
day on which the Notification is published in the Official
Gazette and if it is not whether that would have an
invalidating consequence. There was no decision of the
Supreme Court on this question at the time when the High
Court gave its Judgment in the present case, but subsequent
to the delivery of the Judgment by the High Court, this
question came up for consideration before a Bench of this
Court in special leave petitions directed against a Judgment
of the Delhi High Court which had taken a view different
from that taken in the present case by the Andhra Pradesh
High Court. This Court held in a Judgment reported in Deepak
Pahwa v. Lt. Governor Delhi and Ors. [1984] 4 SCC 308, that
though publication in the Official Gazette and public notice
in the locality are two vital steps required to be taken
under sub-sec.(1) of sec. 4 without which the steps
contemplated under Section 4 Sub-sec.(2) cannot be
undertaken, there is nothing in sub-sec.(1) of sec. 4 which
requires that the publication in the Official Gazette and
public notice in the locality must be simultaneous or
immediately after one another. This Court pointed out that
what sub-sec.(1) of sec. 4 requires is that publication in
the Official Gazette and public notice in the locality must
be contemporaneous but contemporaneity does not involve
simultaneity or immediacy. There is bound to be a gap of
time between publication of the Official Gazette and public
notice in the locality but what is necessary is that they
should not be separated by such a long interval of time that
the continuity of action may appear to be broken by a
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deep gap. If there is publication in the Gazette, observed
this Court, and if there is public notice in the locality
the requirements of sub-sec.(1) of sec.4 must be held to be
satisfied unless the two are unlinked from each other by a
gap of time so large as may lead one to the prima-facie
conclusion of lack of bonafides in the proceedings for
acquisition. If the Notification and the public notice are
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separated by such a large gap of time, it may become
necessary to probe further to discover if there is any cause
for the delay and if the delay has caused prejudice to any
one. The Judgment impugned in the present appeals was
clearly over-ruled by this decision in Deepak Pahwa’s case
(supra) and it was held that Notifications under sec.4 sub-
sec.(1) and sec. 6 could not be struck down as invalid
merely on the ground that public notice of the substance of
the Notification under sec. 4 sub-sec.(1) was not given on
the same day as the publication in the Official Gazette. We
would have had to consider, in the light of the observations
contained in the decision in Deepak Pahwa’s case (supra) as
to whether there was such a large gap between the
publication in the Official Gazette and the public notice in
the locality that the continuity of action would appear to
be broken and that would have necessitated examination of
the question whether there was any justifiable cause for the
delay and if the delay had caused prejudice to the
respondents. But before the decision in Deepak Pahwa’s case
(supra) came to be given by this Court, the Andhra Pradesh
Legislature enacted the Amending Act which came into force
with effect from 23rd June, 1983 and it is this Amending Act
which renders it unnecessary for us to consider whether on
the application of the ratio of the decision in Deepak
Pahwa’s case (supra) the impugned Notification under sec. 4
sub-sec. (1) can be sustained or it is liable to be struck
down as invalid.
We may now proceed to refer to the relevant provisions
of the Amending Act. The Amending Act was passed by the
Andhra Pradesh Legislature in order to counter-act the
effect of the Full Bench decision of the Andhra Pradesh High
Court in W.P. No. 5722 of 1981 and other allied writ
petitions where inter alia it was held that publication in
the Official Gazette and public notice in the locality must
be on the same day or else the Notification under sec. 4
sub-sec.(1) would be invalid. The Amending Act was therefore
given retrospective effect and sub-sec.(3) of sec. 1
expressly enacted that the Amending Act shall be deemed to
have - come into force on 12th September, 1975. Every
provision in the Amending Act must therefore a fortiorari be
deemed to have come into effect from the date
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namely 12th September, 1975. Section 2 of the Amending Act
provided that in the Land Acquisition Act, 1984 in its
application to the State of Andhra Pradesh for the words
"the Collector shall cause", the words "the Collector shall,
within forty days from the date of publication of such
Notification, causes, shall be substituted. Sub-sec. (1) of
sec. 4 in its application to the State of Andhra Pradesh
therefore read as follows with effect from 12th September,
1975:
"Whenever it appears to an appropriate Govt. that
the land in any locality is needed or is likely to
be needed for public purpose, a Notification to
that effect shall be published in the Official
Gazette and the Collector shall, within forty days
from the date of publication of such Notification,
cause public notice of the substance of such
Notification to be given at convenient places in
the locality".
What therefore sub-sec. (1) of sec. 4 as it stood from and
after 12th September, 1975 provided was that the
Notification under that section shall be published in the
Official Gazette and public notice of the substance of such
Notification shall be given in the locality "within forty
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days from the date of publication of such Notification."
This requirement would obviously apply to every Notification
under sub-sec.(1) of sec. 4 issued by the appropriate Govt.
On or after 12th Sept., 1975. If in case of a Notification
issued under sec. 4 sub-sec.(1) on or after 12th September,
1975, public notice of the substance of such Notification is
not given in the locality within forty days from the date of
publication of such notification in the Official Gazette, it
would introduce a fatal infirmity invalidating such
Notification. Here in the present case, the Notification
under sec. 4 sub-sec. (1) was published in the Official
Gazette on 4th August, 1977 but public notice of the
substance of such Notification was given in the locality as
late as 3rd October, 1977 i.e. more than forty days after
the date of publication of such Notification in the Official
Gazette. There was therefore clearly a violation of the
mandate enacted in sub-sec.(1) of sec. 4 as it stood from
and after 12th September, 1975 and the Notification under
sec. 4 sub-sec.(1) was liable to be struck down as invalid,
though on a ground different from that which found favour
with the High Court.
The learned counsel appearing on behalf of the
appellant however made a valient but futile attempt to
escape from the consequence of retrospective amendment of
sub-sec. (1) of sec.4
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by contending that sec. 2 of the Amending Act which
introduced the amendment in sub-sec. (1) of sec. 4 should
not be read as having retrospective effect, but should be
construed as prospective in operation. The argument urged on
behalf of the appellant was that the Legislature enacted the
Amending Act for the purpose of validating acquisitions made
after 12th September, 1975 which were liable to be declared
invalid on account of the Full Bench Judgment of the Andhra
Pradesh High Court in W.P. No. 5722 of 1981 and other allied
writ petitions and it could never have been the intention of
the Legislature to invalidate acquisitions which were valid
when made. The Legislature, contended the learned counsel,
proceeded on the assumption that the Full Bench Judgment of
the Andhra Pradesh High Court represented the correct law on
the subject and it was on that assumption that the Amending
Act was enacted by the Legislature. If, on the Full Bench
Judgment of the Andhra Pradesh High Court being reversed by
this Court in Deepak Pahwa’s case (supra) the assumption
made by the Legislature turned out to be incorrect and it
was found that the Legislature proceeded on an erroneous
view of the law in enacting the Amending Act. The Amending
Act, argued the learned counsel, must be considered
superfluous and not the Amending Act, but the correct law as
it prevailed prior to the Amending Act must be applied. This
argument urged on behalf of the appellant is wholly specious
and must be rejected. It is an argument of despair and it
has only to be stated in order to be rejected. It is
impossible to accept the proposition that because the
Amending Act proceeded on an erroneous view of the law, it
must be considered superfluous and must be deprived of all
effect. Whatever be the reason for which the Legislature
enacted the Amending Act and here the reason no doubt was to
set at naught the effect of the Full Bench Judgment of the
Andhra Pradesh High Court - the Amending Act is on the
statute book and is in force with effect from 12th
September, 1975 and it must be given effect according to the
plain natural meaning of its words. Sub-sec. (3) of sec. 1
of the Amending Act provides in the clearest terms, not
susceptible of any ambiguity or doubt that it shall be
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deemed to have come into force with effect from 12th
September, 1975. It does not carve out any exception in
relation to sec. 2 of the Amending Act and that section must
also therefore, according to the clear and express mandate
contained in sub-sec. (3) of sec. 1, be deemed to have come
into effect on 12th September, 1975. It is true that if, in
case of a Notification under sec. 4 sub-sec.(1) issued after
12th September, 1975, there is a gap of more than forty days
between the date of its publication in the Official Gazette
and the date.
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When public notice of its substance was given in the
locality, sub-sec. (1) of sec. 4 as amended with
retrospective effect from 12th September, 1975 would render
such Notification invalid. But that can be no ground for
denying to the amendment in sub-sec.(1) of sec. 4
retrospective effect, which sub-sec.(3) of sec. 1 of the
Amending Act expressly directs that it shall have- There is
in fact to our mind no inconsistency between the mandate of
sub-sec. (1) of sec. 4 and the law as declared by this Court
in Deepak Pahwa’s case (supra). This Court said in Deepak
Pahwa’s case that there should not be such a large gap
between publication in the Gazette and public notice in the
locality as would be indicative of break in the continuity
of action. What the amended sub-sec. (1) of sec. 4 does is
to legislaturely lay down the limit of the time gap beyond
which it must be presumed that there is a break in the
continuity of action. We must therefore reject the argument
of the learned counsel appearing on behalf of the appellant
that sub-sec. (3) of sec. 1 of the Amending Act must be read
down so as to exclude from its operation Section 2 of that
Act.
We accordingly dismiss the appeals though on a ground
different from that which appealed to the High Court. Each
party will bear and pay its own costs throughout.
M.L.A Appeals dismissed.
161