High Court
Case Details
WP(C) 4851/2012 BEFORE HON’BLE MR. JUSTICEI A ANSARI HON’BLE DR. (MRS) JUSTICE INDIRA SHAH JUDGMENT & ORDER (ORAL) (Ansari, J)
Legal Reasoning
The subject-matter of dispute, in the present two writ petitions, made u nder Article 226 of the Constitution of India, is the process of acquisition of land by the State for the purpose of construction of Driving Training Institute and Research of the District Transport Office. 2. By this common judgement and order, we propose to dispose of both the wr it petitions inasmuch as both these writ petitions involve the same process of a cquisition, which form the subject-matter of challenge in these two writ petitio ns, and both these writ petitions have been heard, on the request made by the le arned counsel for the parties concerned, together. We have heard Mr. S. Bhattacharjee, learned counsel for the writ petitio 3. ner, and Mr. P. S. Deka, learned Additional Senior Government counsel, Assam. W e have also heard Mr. D. Bora, learned Standing counsel, Department of Revenue, Government of Assam, and Mr. U. Rajbonghshi, learned Standing counsel, Transport Department. In order to clearly appreciate the issues involved in the present set o 4. f writ petitions, it is imperative to look into the background of the presently impugned acquisition proceeding. (i) LA Case No. 7/2005 was instituted by the respondents/authorities concerned on the basis of a notification, issued, in this regard, on 15.10.2005 , and the said notification, which was a notification under Section 4 of the Lan d Acquisition Act, 1894 (hereinafter referred to as ’the Act’), was published, o n 28.11.2005, in the Assam Gazette. The said notification was also published, o n 03.01.2006, in a daily newspaper called ’Agradoot’. The process of acquisitio n, which had been set into motion by the notifications aforementioned, lapsed du e to the requisite amount of compensation having not been deposited with the Dis trict Collector by the concerned Department, namely, the Department of Transport , Government of Assam. It was thereafter that a notification, under Section 4, was published, on 29.06.2007, in the Assam Gazette, by the said Department seeki ng to occupy the land, which the petitioners have been, admittedly, in occupatio n and use of as Patta holders thereof. The later notification, dated 29.06.2007 , aforementioned was followed by a declaration, made, on 26.02.2008, purported t o be in exercise of the Government’s power under Section 6 of the Act. 5. What is immensely important and extremely pertinent to note, now, is tha t no notification, under Section 4 of the Act, was published in any newspaper no r was any notice, admittedly, given to the petitioners, though they are Patta ho lders, nor was there any publicity, with regard to the acquisition proceeding, a s mandated by the scheme of the Act. 6. Considering the fact that the present acquisition proceeding suffers fro m non-publication of notice, in terms of the requirement of Section 4 of the Act , and that declaration has also not been published by the respondents/authoritie s concerned in the manner as envisaged by the Act, Mr. Bhattacharjee, learned co unsel for the petitioners, has referred to the case of Mcleod Russel India Limit ed vs. State of Assam, decided on 05.03.2013, wherein this Court, while dealing with the scheme of Section 4 and Section 6 of the Act, observed and held as unde r: While considering the present writ petition, it needs to be carefully no
Decision
(cid:28)14. ted that notwithstanding the fact that the right to property has ceased, under o ur Constitution, to be a ’fundamental right’, Article 300A has been introduced i nto the Constitution by Constitution (44th Amendment) Act, 1978, as a ’right to property’ and Article 300A states that no person shall be deprived of his proper ty save by authority of law. 15. Since a person cannot, in the light of the constitutional provisions emb odied in Article 300A, be deprived of his property except by authority of law, i t would, extended logically, mean that if a person has to be deprived of his pro perty, then, this deprivation has to be in accordance with the law and not contr ary thereto. Because of the fact that the Constitution regards right to property as a Constitutional right, though not a fundamental right, it naturally follows that when a person is deprived of his right to hold on to his property, it is i ncumbent, on the State, to ensure that the procedure, prescribed by law, is meti culously and strictly adhered to or else, the right to property, as recognized b y Article 300A, would become an empty formality and the real spirit, behind embo dying the provisions of Article 300A, would wholly stand defeated. 16. In the backdrop of the Constitutional assurance to protect an individual ’s ’right to property’ except as provided by law, let us consider and examine th e provisions of the LA Act relating to the issues raised in the writ petition, t he core issues being whether the procedure, which has been prescribed by Section 4 read with Section 6 of the LA Act, has or has not been followed in the manner in which it ought to have been followed and, if there has been non-compliance o f the procedure prescribed by Section 4 and 6, whether such non-compliance would make the acquisition bad in law and liable to interference by Courts, more so, when the procedure, which Section 4 and Section 6 of the Land Acquisition Act pr escribes, as regards acquisition of land, is a composite procedure and the proce dure being mandatory in nature ? 17. s as under: (cid:28)4. .- (1) Whenever it appears to the Collector of the District that land in any loc ality is needed or is likely to be needed for any public purpose or for a Compan y, a Notification to that effect shall be published in the official Gazette, and the Collector shall cause public notice of the substance of such Notification t Publication of preliminary notification and powers of officers thereupon Situated thus, when we consider Section 4, we notice that Section 4 read o be given at convenient places in the said locality. Thereupon it shall be lawful for any officer, either generally or specia (2) lly authorised by the Collector of the District in this behalf, and for his serv ants and workmen,- to enter upon and survey and take levels of any land in such locality; to dig or bore into the subsoil; 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 inten ded line of the work (if any) proposed to be made thereon; to mark such levels, boundaries and lines by placing marks and cutting t renches; and, where otherwise the survey cannot be completed and the levels taken and the boundaries and lines marked, to cut down and clear away any part of any stan ding crop, fence or jungle: Provided that no person shall enter into any building or upon any enclos ed 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’ n otice in writing of his intention to do s 18. 6. Close on the heels of Section 4, Section 6 reads : Declaration that land is required for a public purpose.- (1) Subject, to the provisions of Part VII of this Act, when the Commissioner is satisfied, aft er 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 declara tion shall be made to that effect under the signature of Secretary to such Gover nment or of some officer duty duly authorised to certify its orders and differen t 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), irre spective of whether one report or different reports has or have been made (where ver required) under section 5-A, sub-Section (2): Provided that no declaration in respect of any particular land covered by a noti fication under section 4, sub-Section (1), - published after the commencement of the Land Acquisition (Amendmen (i) t and Validation) Ordinance, 1967 (1 of 1967), but before the commencement of th e Land Acquisition (Amendment) Act, 1984, shall be made after the expiry of thre e years from the date of the publication of the notification; or published after the commencement of the Land Acquisition (Amendmen (ii) t) Act, 1984, shall be made after the expiry of one year from the date of the pu blication of the notification: Provided further that no such declaration shall be made unless the compensation to be awarded for such property is to be paid by a Company, or wholly or partly out of public revenues or some fund controlled or managed by a local authority. (2) Every declaration shall be published in the official Gazette, and in two daily newspapers circulating in the locality in which the land is situated of w hich at least one shall be in the regional language, and the Collector shall cau se public notice of the substance of such declaration to be given at convenient places in the said locality (the last of the dates of such publication and the g iving of such public notice, being hereinafter referred to as the date of the pu blication of the declaration), and such declaration shall state the district or other territorial division in which the land is situate, the purpose for which i t is needed, its approximate area, and, where a plan shall have been made of the land, the place where such plan may be inspected. (3) The said declaration shall be conclusive evidence that the land is neede d for a public purpose or for a Company, as the case may be; and, after making s uch declaration, the appropriate Government may acquire the land in manner herei nafter appearing. (cid:29) A bare reading of Section 4, as a whole, shows that under Sub-Section (2 19. ) of Section 4, it becomes lawful for any officer to enter upon the land, sought to be acquisitioned, and do what is indicated by Sub-Section (1) of Section 4 p rovided that the procedure, prescribed for publication of the preliminary notifi cation in respect of the land (which is sought to be acquired), has been scrupul ously followed. Conversely speaking, if the procedure, as prescribed by Sub-Sect ion (1) of Section 4, is not scrupulously adhered to, the legislation does not p ermit any further progress of the acquisition, which is commenced by publication of the preliminary notification in terms of Sub-Section (1) of Section 4. 20. Similarly, Sub-Section (2) of Section 6 lays down the procedure for decl aration that the land is required for a public purpose and Sub-Section (3) makes it clear that if the declaration is made in accordance with law, such a declara tion shall be conclusive evidence that the land is needed for public purpose and , on making of such declaration, the appropriate Government may acquire the land in a manner as has been prescribed in the succeeding provisions of the LA Act. 21. Here again, what becomes clear is that if the declaration, in respect of the land, is not made by scrupulously adhering to the provisions of Sub-Section (2) of Section 6, then, the declaration would not be clothed by the expression ’conclusive evidence that the land is needed for a public purpose’. Logically e xtended, this would mean that if the publication of the preliminary notification is not in accordance with law, the appropriate Government cannot acquire the la nd, more particularly, if the appropriate Government commits breach of the requi rements of law as embodied in Section 6 of the Land Acquisition Act. 22. Bearing in mind what have been indicated above, when we revert to Sectio n 4, we notice that Section 4 lays down that when it appears to the appropriate Government that a land is needed or is likely to be needed for any public purpo se, a notification to that effect shall be published in the official Gazette and the notification, so published in the official Gazette, shall be published in t wo daily newspapers, which have circulation in the locality, where the land is l ocated, and out of these two newspapers, one newspaper shall, at least, be in th e regional language. The provisions, so embodied in Sub-Section (1) of Section 4, show that once it appears to the appropriate Government that a land is needed or is likely to be needed for a public purpose or for a Company, the Government shall publish a notification, in this regard, in the official Gazette and the s ame notification has to be published in two daily newspapers, circulating in tha t locality, and one of these newspapers shall be in the regional language meanin g thereby that the notification, which is published in the official Gazette, has also to be published in one of the daily newspapers in the regional language, i .e., the language used in the locality, where the land is situated. In short, t he provisions, contained in Sub-Section (1) of Section 4, show that publication of the notification, in the official Gazette, commonly called ’preliminary notif ication’, has to be followed by publication in the two daily newspapers. 23. What logically follows from the above discussion is that if the prelimin ary notification has not been published at all in a daily newspaper, circulating in the locality, in the regional language, then, the very purpose of publicatio n of the preliminary notification would stand defeated. 24. Sub-Section (1) of Section 4 further shows that after the notification h as been published in the official Gazette followed by publication of the notific ation in the newspapers as mentioned hereinbefore, the Collector shall cause pub lic notice of the substance of such notification to be given at convenient place s in the said locality. Thus, the public notice, which a Collector is required to cause to be gi 25. ven, containing substance of the notification, as indicated hereinbefore, has to succeed the publication of the notification in the two daily newspapers and not precede the publication of the notification in the daily newspapers. Speaking a little more explicitly, the Collector cannot cause public notice to be given un less a notification, same as the notification in the official Gazette, has alrea dy been published in the two daily newspapers circulating in the locality in the manner as has been pointed out hereinbefore. 26. In the present case, there is no dispute that the preliminary notificati on, required to be published under Section 4, was published in the official Gaze tte on 27-12-2010 and the publication of the preliminary notification, in the of ficial Gazette, was not followed by publication of the preliminary notification in the newspapers; rather, a public notice, as the respondents contend, was give n by the Collector, on 03-04-2010, and it was, then, that the preliminary notifi cation, which was to be published in the two daily newspapers, came to be publis hed, the publication of the notification being, on 08-05-2010, in ’Dainik Janasa dharan’ and, on 09-05-2010, in ’The Sentinel’. Thus, though publication of the preliminary notification in the newspape 27. rs ought to have preceded publication of the public notice by the Collector, the case at hand shows that the public notice is claimed to have been given by the Collector even before the notification, in tune with the preliminary notificatio n, was published in the newspapers. 28. Thus, the manner in which the steps, for publication of the preliminary notification, ought to have been taken, have not been taken in the present case. This apart, the preliminary notification, in both the newspapers, were contrary to the mandate of Section 4 inasmuch as the preliminary notifications were publ ished in the two daily newspapers aforementioned in English language; whereas it is the admitted case of the parties concerned that the regional language of the locality concerned is Assamese and, thus, here again, there was a breach of the condition, which has been prescribed by Sub-Section (1) of Section 4 for validl y acquiring land. Moreover, there is, admittedly, no material on record to show that the p 29. ublic notice, containing the substance of the preliminary notification, which th e Collector was required to give, was published in the locality at all inasmuch as the Collector made over the said notice to the local Gaonburah for publicatio n. There is neither any report from the Gaonburah nor any affidavit by Gaonburah or any other person proving that the public notice was, in fact, published by t he Gaonburah or anyone in the locality concerned. 30. Clearly, therefore, one shall have no hesitation, and we have no hesitat ion, in concluding that the procedure, prescribed by Sub-Section (1) of Section 4, with regard to the publication of the preliminary notification, has not been scrupulously followed. Far from this, the procedure stands breached and mutilate d, while publishing the preliminary notification. 31. Coupled with the above, though Sub-Section (2) of Section 6 makes it cle ar that the declaration, which Section 6 contemplates, has to be published in th e same order in which a preliminary notification, under Sub-Section (1) of Secti on 4, is required to be published in the sense that when the appropriate Governm ent is satisfied that the land, in question, is needed for public purpose or for a Company, a declaration to that effect shall be made under the signature of th e Secretary to such Government or of some officer duly authorised, in this behal f, and that this declaration has to be published in the official Gazette and, up on publication of the declaration in the official Gazette, the declaration/notif ication has to be published in two daily newspapers circulating in the locality in which the land is situated, and out of the two daily newspapers, one shall, a t least, be in regional language and, then, only the Collector shall cause publi c notice to be given in the same manner as is required to be given under Sub-Sec tion (1) of Section 4. It may be noted, in this regard, that the publication of declaration/notification in two daily newspapers need not necessarily be after p ublication of the declaration/notification in Official Gazette, it may be simult aneous publication also.7. In the case at hand, it has clearly surfaced tha t the notification, under Section 4 of the Act, was not published in any newspap er nor any notice has been given to the petitioners though they are Patta holder s of the land, which is sought to be acquired by the respondents/authorities con cerned. (cid:29) In the light of the law laid down, in Mcleod Russel India Limited (supra 8. ), when we notice that no notification, under Section 4 of the Act, was, admitte dly, published, in accordance with law, in the requisite number of newspapers an d no publicity, as regards the acquisition proceeding, had been given in the loc ality concerned and when no notice had been given to the present petitioners, th ough they were, and are, Patta holders, the subsequent declaration, published on 26.02.2008, in the Assam Gazette, cannot be legally sustained. This apart, eve n the declaration, under Section 6 of the Act, has not been published in the man ner as the declaration ought to have been published in the sense that the declar ation, as mandated by Section 6 of the Act, has not been published in any newspa per. 9. At any rate, when the notification, under Section 4 of the Act, was not published in accordance with law, the subsequent declaration, made under Section 6 of the Act, cannot become legal or valid. 10. Because of the vital omissions, on the part of the respondents/ authorit ies concerned, in issuing notifications in terms of the provisions of Section 4 and Section 6 of the Act, we are clearly of the view that the process of acquisi tion, which has been initiated by the notification, dated 29.06.2007, is bad in law and the same must, therefore, be interfered with. When the notification, da ted 29.06.2007, cannot survive, the subsequent declaration, made on 26.02.2008, too, cannot stand and is required to be set aside. 11. In the result and for the foregoing reasons, both these writ petitions s ucceed. The notifications, dated 29.06.2007, and 26.02.2008, which gave rise to the impugned acquisition proceeding, are hereby set aside and quashed. The res pondents are, however, left at liberty to resort to a fresh acquisition proceedi ng, in accordance with law, if so required, provided that the purpose for acquis ition is a public purpose. 12. and disposed of. 13. With the above observations and directions, both these writ petitions st No order as to costs.