CWP No. 1687 of 2008 1
IN THE HIGH COURT OF PUNJAB AND HARYANA AT
CHANDIGARH.
C.W.P.No. 1687 of 2008
Date of decision 3 .12.2008
Partap Singh and others ...Petitioners
Versus
State of Haryana and others ... Respondents.
CORAM: HON'BLE MR. JUSTICE M.M. KUMAR
HON'BLE MR. JUSTICE JORA SINGH
Present: Mr. Pankaj Jain, Advocate for the petitioner.
Mr. Ashish Kapoor, Addl. AG Haryana.
Mr. Kapil Kakkar, Advocate for respondent nos. 2 and 3.
1. Whether Reporters of local papers may be allowed to see the judgement ?
2. To be referred to the Reporter or not ?
3. Whether the judgement should be reported in the Digest ?
M.M.KUMAR, J.
The short question raised in the instant petition filed under
Article 226 of the Constitution is whether the last date of publication of
notice under Section 4 of the Land Acquisition Act, 1894 (for brevity ‘the
Act’) would be the relevant date for issuance of notification under Section 6
of the Act when the provisions of Section 17(2)(c) read with Section 17(4)
of the Act on account of urgency have been invoked. The afore-mentioned
question has been raised by challenging notification dated 3.1.2008 issued
under Section 4 read with Section 17 of the Act and declaration dated
4.1.2008 made under Section 6 read with Section 17 of the Act ( Annexures
P.2 and P.3 respectively). The principal ground of challenge is that since the
substance of notification issued under Section 4 of the Act was published in
the locality on 24.1.2008 then no declaration could have been issued under
CWP No. 1687 of 2008 2
Section 6 read with Section 17 of the Act before that date. It has been
submitted that the declaration having been issued on 4.1.2008 ( Annexure
P.3) suffer from legal infirmity and is thus liable to be set aside.
Mr. Pankaj Jain, learned counsel for the petitioner has argued
that a bare perusal of Section 4 of the Act would show that the last date of
publication giving substance of the notification has to be considered as the
date of notice published under Section 4 of the Act. According to the
learned counsel the date of notification in the present case must be regarded
according to the afore-mentioned provision to be 24.1.2008 and therefore no
declaration under Section 6 read with Section 17 of the Act could have been
made on 4.1.2008. He has highlighted that a declaration under Section 6
read with Section 4 of the Act has been made one day after the notification
under Section 6 of the Act has been issued whereas the last publication of
the substance of the notification in the locality was made on 24.1.2008. In
support of his submission, learned counsel has placed reliance on a
judgement of the Hon’ble supreme Court in the case of State of U.P. v.
Radhey Shyam Nigam and others AIR 1989 SC 682. Placing reliance on the
observations made in para 14 of the judgement, learned counsel has
submitted that the notification under Section 6 read with Section 17 of the
Act issued on 4.1.2008 stands vitiated.
Mr. Ashish Kapoor, learned State counsel, however has placed
reliance on the observations made by Hon’ble the Supreme Court in the case
of Mohan Singh and others v. International Airport Authority (1997)9 SCC
132. Learned counsel has drawn our attention to the observations made in
para no.13 and has argued that various steps contemplated by Section 4(1)
of the Act would not be necessary for exercise of powers under Section 17
CWP No. 1687 of 2008 3
(2) of the Act. The observation only requires that there has to be at least a
day’s difference between publication of notification under Section 4(1) and
declaration made under Section 6 of the Act.
Having heard the learned counsel and perusing the paper book
with their able assistance we are of the view that this petition is liable to be
dismissed. It is true that numerous steps are postulated by Section 4 of the
Act before issuance of declaration under Section 6 of the Act. Section 4 of
the Act in terms require the publication of notice in the newspaper and in
the absence of invoking the urgency provision the usual procedure as
contended by the learned counsel has to follow. However, when urgency
provisions postulated by Section 17(2) and Section 17(4) of the Act have
been invoked then the publication of notification in two local newspapers
and giving notice of the substance at three convenient places in the locality
is not mandatory. The question came up for consideration before Hon’ble
the Supreme Court in Radhey Shyam’s case (supra) and interpreting Section
17(4) of the Act it was held that declaration under Section 6 of the Act has
to be made after publication of the notification subsequently. In other
words, when urgency provision has been invoked then declaration under
Section 6 of the Act has to be made subsequently which means that it could
be even a day later. Similar controversy was raised before the Hon’ble
Supreme Court in Mohan Singh’s case (supra) on which reliance has been
rightly placed by the learned State counsel. In para 13 of the judgement the
precise question has been dealt with and it has been held that various other
steps postulated by Section 4 of the Act regarding publication of the
substance of notification in the locality is not mandatory and only a gap of
atleast a day between the publication of notification under Section 4(1) of
CWP No. 1687 of 2008 4
the Act and declaration under Section 6(1) of the Act would be sufficient
compliance. Para 13 of the judgement which answers the question against
the petitioner reads thus:
“13. The question is: whether it is mandatory in such a
situation, i.e., after the publication of the notification in the
Gazette publication in two local newspapers and giving of
notice of the substance of the notification at convenient places
in the locality, to await the exercise of power under Section 17
(4)? After giving due and deep consideration to the respective
contentions raised by the learned counsel, we are of the
considered view that though the compliance of these three steps
required under Section 4(1) is mandatory for the exercise of the
power under Section 17(4), it is not necessary that all the three
steps should be completed before making the declaration under
Section 6(1) and have it published for directing the Collector to
take possession under Section 17(1) or 17(2). What is needed
is that there should be a gap of time of at least a day
between the publication of the notification under Section 4
(1) and of the declaration under Section 6(1). Herein, we
dispose of the controversy and agree with Shri Shanti
Bhushan that the date of the notification and declaration
published as mentioned in the Gazette is conclusive but not
the actual date of printing of the Gazette. This
interpretation of ours would serve the public purpose,
namely, the official functions are duly discharged. When the
land is urgently needed under Section 17(1), notice under
CWP No. 1687 of 2008 5Section 9(1) would be given to the owner steps would be
taken to and resume its possession after the expiry of 15
days. If it is needed urgently under Section 17(2), even
without waiting for 15 days on issue of notice under Section
9(1) to the owner, the appropriate Government would
direct the Collector to take possession of the land
immediately. If the publication in the newspapers and in the
locality is also insisted upon as preliminary to the exercise
of power under Section 17(4) which are mandatory
requirements and until last of them occurs, the immediate
or urgent necessity to take possession of the land under
Section 17(1) or 17(2) before making the award would be
easily defeated by dereliction of duty by the subordinate
officers or by skillful manoeuvre. The appropriate
Government is required to take the decision for acquisition
of the land and to consider the urgency or emergency and to
make the notification under Section 4(1) and declaration
under Section 6 and have them published in the Gazette
that the land acquired under Section 4(1) is needed for
public purpose; they become conclusive under Section 6;
and to give direction to the Collector to take its possession.
The publication in the newspapers and giving of notice of
the substance of the notification at the convenient places in
the locality are required to be done by the Collector
authorised by the Government under Section 7 and his
subordinate staff. If dereliction of duty is given primacy,
CWP No. 1687 of 2008 6delay deflects public justice to meet urgent situation by the
acts of subordinate officers for any reason whatsoever.
Until that is done and the last of the dates occurs,
Government would be unable to act swiftly for the public
purpose to take immediate possession envisaged under sub-
section (1) or (2) of Section 17 and they would be easily
defeated or frustrated.” (emphasis added)
It is thus obvious that publication of notification under Section 4 in
the newspapers or publication of its substance in the locality is not
mandatory and it is merely directory. Such being the position of law we find
no merit in the submission made by the counsel for the petitioner and the
question posed in the first para of the judgement is required to be decided
against the petitioner. Accordingly, the writ petition is liable to be
dismissed.
For the reasons afore-mentioned this petition fails and the same
is dismissed.
(M.M.Kumar)
Judge
(Jora Singh)
3.12.2008 Judge
okg