JUDGMENT
B.H. Marlapalle, J.
1. The petitioners claim to be the owners of the agricultural lands in Gut Nos. 192 and 202 of village Andoora in Taluka Kallam of District Osmanabad. They are challenging the land acquisition proceedings which have culminated into an Award passed on 10-12-1990. The petitioners more particularly pray that the declaration dated 25-12-1987 made under Section 6 of the Land Acquisition Act, 1894 (for short, the Act) and the Award dated 10-12-1990 be declared as inoperative.
2. Admittedly on 19-8-1986 the respondent No. 2 published Section 4 notification in a local newspaper and the petitioners were served with the notice on 4-9-1986. After receiving the notice they filed their objections and Section 5A inquiry was conducted. The petitioners claim that the declaration under Section 6 of the Act was published in the local newspaper of 25-12-1987 and thus, it being beyond the period of one year from the date of Section 4 notification it was inoperative in view of provisions of Clause (ii) to first proviso of Section 6(1) of the Act. The Award was passed on 10-12-1990 and it was beyond the period of two years from the date of publication of Section 6 declaration with reference to its publication in the local newspaper on 25-12-1987. The petitioners also contended that while conducting Section 5A inquiry they were not heard and hence, the principles of natural justice were violated.
3. The Special Land Acquisition Officer has filed return and stated that the subject land was sought to be acquired for the construction of percolation tank at village Andoor and thus, for a public purpose. Notification under Section 4 of the Act is dated 25-9-1986 and the Commissioner, Aurangabad, made a declaration under Section 6 on 31-8-1987 i.e. well within one year. The said declaration was published in the local newspapers and the last publication of the said notification was published on 17-1-1989 and therefore, the Award passed on 10-12-1990 is within a period of two years from the date of last publication of the declaration under Section 6 of the Act.
4. Mrs. Kulkarni, learned Advocate for the petitioners, submitted that the proceedings suffer on two counts, namely; (1) declaration under Section 6 of the Act was not published within a period of one year from the date of publication of Section 4 notification i.e. from 25-9-1986 and (2) the Award was in breach of the mandatory provisions of Section 11A of the Act, inasmuch as, the Award dated 10-12-1990 was not passed within a period of two years from 31-8-1987. Both these submissions are fallacious if regard be had to the language of Clause (ii) to the first proviso to Section 6(1) of the Act and the factual position as has been set-out in the return filed by the Land Acquisition Officer. The second proviso to Section 6(1) of the Act reads thus :
“Provided that no declaration in respect of any particular land covered by
a notification under Section 4, Sub-section (1):–
(i)………………
(ii) published after commencement of the Land Acquisition (Amendment) Act, 1984, shall be made after the expiry of one year from the date of the publication of the notification.”
It requires to be noted that the statute envisages making of the declaration under Section 6(1) of the Act and not its publication. Making of the declaration is complete as soon as the Commissioner passed an order. This was done on 31-8-1987 and therefore, the petitioners cannot rely on the date of last publication of the Section 6 declaration i.e. 17-1-1989. If the words used were “shall be published” the situation could be different but the Parliament has used the words “shall be made”. Making of a declaration is different from the publication of declaration.
5. Sub-section (2) of Section 6 of the Act provides for three modes of publication of Section 6 declaration i.e. official Gazette, two daily newspapers
circulated in the locality and the Collector causing notice of the substance of such declaration at the convenient places. The last of three dates of such publication is to be treated as the date of publication of declaration for counting the period for the purpose of Section 11A of the Act. Sub-section (1) of Section 6 of the Act envisages making of declaration and Sub-section (2) thereof specifically states that the declaration shall be conclusive proof that the land is needed for a public purpose. The last declaration made under Section 6(2) of the Act is on 17-1-1989 and the Award has been passed on 10-12-1990 which is within a period of two years as set-out under Section 11A of the Act. The contention that the provisions of Section 11A have been breached cannot be accepted.
6. Once the challenge raised on both the counts fails, the learned Counsel brings to our notice that in view of the interim order passed by this Court on 31-1-1992, the petitioners have been in possession of the subject land and therefore, they have a right to make an application under Section 48 of the Act praying for withdrawal of the acquisition proceedings. It is for the competent authority to consider such as application and we do not wish to express any opinion on the same.
7. In the result, the challenge to the land acquisition proceedings fails and therefore, the petition is hereby dismissed. Rule is discharged. Interim order stands vacated. No order as to costs.
8. In case, the petitioners submit an application under Section 48 of the Act
within a period of four weeks from today we direct the Divisional Commissioner,
Aurangabad, to consider and decide the same on its own merits including its
maintainability within a period of three months thereafter and the protection to
the possession of the petitioners granted by this Court shall continue to operate
till the application under Section 48 of the Act is decided.
