ORDER
1. A notification purporting to be u/S. 4(1) of the Land Acquisition Act, 1984 (hereinafter referred to as the Act) was issued on 4th May, 1982 and was published in the U.P. Gazette on 25th Sept. 1982. By this notification a number of agricultural plots including plot No. 351 (area 1.53 acres) situated in village Sonakpur, tehsil and district Moradabad were sought to be acquired for the Moradabad Development Authority. The validity of the said notification is being impugned in the present petition by the petitioners who allege themselves to be the owners of plot No. 351.
2. Shri R. H. Zaidi has advanced the following submissions in support of this petition : (1) No publication of the notification u/S. 4 took place in the locality, (2) the notice issued u/S. 4 was not served upon the petitioners in conformity with S. 45 of the Act and (3) the publication in the locality having not taken place within 21 days from the date of publication of the notification in the official gazette, the entire proceedings fell through. We shall deal with these contentions in seriatim.
3. Re. 1. In paragraph 16 of the writ petition, which has been sworn on personal knowledge by a pairokar on behalf of the petitioners, the averment is that according to the further information gathered by the petitioners, the Collector, Moradabad never caused public notice of the notification dated 4th May, 1982 or the substance thereof to be given/affixed at any convenient place or any other place in the concerned locality. This averment has been controverted in para 9 of the counter affidavit filed by one Shri Anil Kumar Sachan, a Junior Engineer in the Moradabad Development Authority. The averments are these. The substance of the notification u/S. 4 of the Act was published on the spot and at the police station and the tehsil. There was wide publicity about the acquisition proceedings and the petitioners and other tenure holders, whose land had been acquired, very well knew about the land acquisition proceedings. Wide publicity of the acquisition of the plot in dispute and other plots was made in the locality. The Naib
Tehsildar got publicity made through Vinod Swarup, peon and on 1st December, 1982 Vinod Swarup, peon had submitted a report that the notice had been published on the notice board and also on the Neem tree in the village. A copy of the notice was pasted on the notice board of Tehsil and the police station. A true copy of the report submitted by Vinod Swarup has also been filed as Annexure 2 to the affidavit. On the material on record, we are satisfied that the publication in the locality had taken place. There is, therefore, no substance in this contention.
4. Re. 2. It is not the requirement of S. 4 of the Act that a personal notice should be given of the publication made under sub-sec. (1). Sub-sec. (2) of S. 4 talks of personal notice upon the occupier of a building etc. after publication of the notification u/ S. 4 has taken place and the officer authorised desires to enter upon and survey the land etc. S. 45 talks of the manner of service of the notice which is contemplated in sub-sec. (2) of S. 4 and the proviso to sub-sec. (2) of S. 4 makes the position clear. There is, therefore, no substance again in the contention made on behalf of the petitioner that personal notice should have been given to the petitioners of the notification under S. 4(1).
5. Re. 3. Sub-sec. (1) of S. 4 and S. 5-A of the Act, as amended in this State and as they stood at the relevant time, ran as under :–
“4(1) Whenever it appears to the appropriate Government or the Collector that land in any locality is needed or is likely to be needed for any public purpose, a notification to that effect shall be published in the official Gazette and the Collector shall cause a notice of the substance of such notification to be given at convenient places in the said locality.”
“5-A. Any person interested in any land which has been notified u/S. 4, sub-sec. (1), as being needed or likely to be needed for a public purpose or for a company may, within twenty one days after the issue of the notification, object to the acquisition of the land or any land in the locality as the case may be.”
6. Admittedly the publication of the
notification u/S. 4 in the locality had taken place after the expiry of a period of twenty one days from the date of the publication in the official Gazette. Before examining the contention on merits, we may indicate that the petitioner did not prefer any objection at all to the acquisition of the land in question as envisaged in S. 5-A. It is not the case of the petitioner that he had preferred an objection u/S. 5-A after the publication of the notification u/S. 4 in the locality and the same had been rejected on the ground that it had been filed beyond a period of twenty one days from the date of publication in the official Gazette. We repeat that the petitioner did not prefer any objection at all even after the publication of the notification in the locality. The petitioners, therefore, were not prejudiced at all by the mere fact that no notice was issued in the locality within twenty one days of the publication of the notification in the official Gazette.
7. Section 5-A contemplates the filing of an objection within twenty one days after the issue of the notification. The crucial question is : When was the notification issued? Reverting to sub-sec. (1) of S. 4, we find that it is provided therein that the publication in the official Gazette alone is not sufficient. The Collector is mandated to cause notice of the substance of the notification to be given at convenient places in the locality. Therefore, for the purpose of coming into existence of a notification as contemplated in S. 5-A the twin acts of the publication in the official Gazette and in the locality are imperative. A valid notification u/S. 4 will come into existence only after both the acts have been preformed. Indeed, it has been the consistent view of the Supreme Court that the publication of the substance of the notification, as published in the official Gazette, in the locality, is mandatory. We have, therefore, no hesitation in taking the view that in the instant case the right to file an objection within a period of twenty one days accrued to the petitioner after the publication in the locality.
8. In State of Mysore v. Abdul Razak Sahib (AIR 1973 SC 2361) the notification u/S. 4 of the Act was published in the official
Gazette on 17th August, 1961 and the notice was published in the locality on 1st and 9th Nov. 1961. The objections were filed on 4th Dec. 1961. In para 4 it is held that unless the publication in the official Gazette and in the locality take place S. 4 of the Act cannot be said to have been complied with. The publication of the notice in the locality is a madatory requirement. It has an important purpose behind it. In the absence of such publication the interested persons may not be able to file their objections about the acquisition and they will be deprived of the right of representation provided u/S. 5-A, which is very valuable right.
9. In para 5 their Lordships approved the decision of the High Court of Mysore in Gangadharaiah v. State of Mysore, (1961) Mys LJ 883 wherein it was laid down that it is only when the notification is published in the official Gazette and it is accompanied by or immediately followed by the public notice, that a person interested in the property proposed to be acquired can be regarded to have had notice of the proposed acquisition. In para 6 their Lordships observed :–
“The impugned notification has not complied with the requirement of the law. Hence the High Court was justified in quashing the proceedings taken.”
10. In Shrimati Daya Wati v. Collector, Saharanpur, (AIR 1975 All 202) the facts were these. Two notifications under sub-sec. (1) of S. 4 of the Act were published in the official Gazette on 4th Aug. 1973. The Gazette notifications published on 4th Aug. 1973, invited objections from the persons interested u/S. 5-A. However, the publication of the substance of the Gazette notification in the locality was made on 28th and 29th Aug. 1973. Objections were preferred, were considered and a report submitted to the State Government u/S. 5-A. Relying upon the judgment of the Supreme Court in Abdul Razak’s case (supra) a learned single Judge of this Court has taken the view that the authorities having not complied with the requirement of the law, therefore, the notifications issued under sub-sec. (1) of S. 4 of the Act are rendered illegal.
11. Abdut Razak’s case and Shrimati Daya Wati’s case (supra) fully support the contention raised on behalf of the petitioners. However, in the case of Deepak Pahwa v. Lt. Governor of Delhi (1984) 4 SCC 308 : AIR !984 SC 1721 their Lordships have discerned the ratio decidendi of Abdul Razak’s case (supra). Material facts in Deepak Pahwa’s case are these. Combined notifications-under Ss. 4 and 17 and declaration u/S. 6 of the Act were published in the official Gazette on 18th June, 1984. Public notice of the substance of the notification u/S. 4 was given in the locality on 17th July, 1984. Their Lordships observed that sub-sec. (1) of S. 4 does not prescribe that public notice of the substance of the notification should be given in the locality simultaneously with the publication of the notification in the official Gazette or immediately thereafter. Publication in the official Gazette and public notice in the locality are two vital steps required to be taken under sub-sec. (1) before proceeding to take the next step of entering upon the land under sub-sec. (2) of S. 4. The time factor is not a vital element of sub-sec. (1) S. 4 and there is no warrant for reading the words ‘simultaneously’ or ‘immediately thereafter’ into sub-sec. (1) of S. 4. Publication in the Official Gazette and public notice in the locality are the essential elements of sub-sec. (I) of S. 4 and not the simultaneity or immediacy of the publication and the public notice. But since the steps contemplated by sub-section (2) of Section 4 cannot be undertaken unless publication is made and public notice as contemplated by sub-section (1) of Section 4 is given, it is implicit that the publication and the public notice must be Contemporaneous though not simultaneous or immediately after one another. Naturally contemporaneity may involve a gap of time and by the very nature of the things, the publication in the official Gazette and the public notice in the locality must necessarily be separated by a gap of time. This does not mean that the publication and the public notice may be separated by a long interval of time. What is necessary, is that the continuity of action should not appear to be broken by a deep gap. If there is a publication in the
Gazette and if there is a public notice in the locality, the requirements of sub-sec. (1) of S. 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 bona fides in the proceedings for acquisition. If the notification and the public notice are 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 anyone.
12. While dealing with Abdul Razak’s case (supra) their Lordships observe :–
“We are unable to read the observations in
State of Mysore v. Abdul Razak as laying
down any general principle that every time-
gap between the publication in the Gazette
and the public notice in the locality is fata! to
the acquisition. Apart from the physical
impossibility of synchronising the publication
in the Gazette and the public notice in the
locality, one can visualise a variety of cir
cumstanced which may bring about a time-
gap between the two. There may be a break
down of communications, there may be a
strike or bandh as happened in one of the
reported cases in Andhra Pradesh {Sadar
Anjuman Ahmediyya, Muslim Mission v.
State, AIR 1980 Andh Pra 246) or there may
be some other justifiable reason. This court
did not lay down any general principle that an
acquisition would be regarded as void of the
notification published in the Gazette was not
accompanied or immediately followed by the
public notice. What in fact appears to have
been said was that a person interested in the
property can be regarded to have had notice
of the proposed acquisition if both the
requirements of S. 4(1) are complied with
whether simultaneously or one after the
other. As we said no invariable rule was laid
down that an acquisition would be regarded
as void whenever there was a gap of time
between the publication in the Gazette and
the public notice in the locality.”
13. In Land Acquisition Officer, Hyderabad Urban Development Authority, Hyderabad, A.P. v. Mohd. Amri Khan(1986) 1 SCC 3 the relevant facts were these. The notifi-
cation under sub-sec. (1) of S. 4 was published on 4lh Aug. 1977 and public notice of the substance of the notification was given at public places in the locality after a period of two months on 3rd Oct. 1977. Thereafter, an enquiry u/S. 5-A of the Act was held fallowed by a notification u/ S. 6. The High Court held that since the local publication of the substance of the notification under sub-sec. (1) of S. 4 was not made on the same date on which the notification was published in the official Gazette but it was made almost two months later, the notification under sub-sec. (1) of S. 4 was.invalid and consequently the notification issued u/S. 6 failed. The matter was taken to the Supreme Court by the State. Their Lordships note the observations made in Deepak Pahwa’s case (supra). Their Lordships observe :
“The judgment impugned in the present appeals was clearly overruled by this decision in Deepak Pahwa case and it was held that notifications under be struck down as invalid merely on the ground that public notice of the substance of the notification u/S. 4(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 case 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.”
Their Lordships note that before the decision in Deepak Pahwa’s case the Andhra Pradesh Legislature brought in certain amendments and in view of those amendments it became unnecessary to consider whether on the application of the ratio of the decision in Deepak Pahwa’s case the notification under sub-sec. (1) of S. 4 could be sustained or was liable to be struck down. It is thus clear that their Lordships approved the ratio of the decision in Deepak Pahwa’s case.
14. We are not oblivious of the fact that the decisions in Abdul Razak’s case (supra), Deepak Pahwa’s case (supra) and Land Acquisition Officer, Hyderabad’s case (supra) were rendered by a Bench of 3 Hon’ble Judges, in Deepak Pahwa’s case the Hon’ble Judges have extracted the ratio decidendi of Abdul Razak’s case and the decision with respect to the ratio of Abdul Razak’s case in Deepak Pahwa’s case has been accepted in Land Acquisition Officer’s case. The dictum of the Supreme Court in Deepak Pahwa’s case as to what is the ratio of the decision in Abdul Razak’s case is the declaration of law and is binding on this Court under Art. 141 of the Constitution. Therefore, it is not open to the learned counsel for the petitioner to contend that there is a conflict between the decisions given in Abdul Razak’s case and Deepak Pahwa’s case.
15. In Dias Jurisprudence, Third Edition, page 82 under the sub-head.” “Explaining” it is observed :
“A Judge may place a certain interpretation on a precedence and then refuse to follow it, distinguish it, or follow it. Explaining is one of the clearest manifestations of the power of subsequent Judges to reshape the ratio decidendi of earlier cases.”
In our opinion in Deepak Pahwa’s case their Lordships of the Supreme Court have reshaped the ratio decidendi of Abdul Razak’s case.
16. In the instant case even though there is a gap between the publication in the official Gazette and the public notice in the locality, continuity of the action does not appear to be broken. In any view of the matter we have no hesitation in taking the view that the delay between the publication in the official Gazette and the public notice in the locality has not caused any prejudice to the petitioners.
17. We may indicate that the validity of the aforesaid notification was challenged by other tenure-holders in this Court in writ petitions Nos. 6424 of 1985, 3885 of 1985, 6605 of 1985, 6556 of 1985 and 788 of 1987 and all these petitions have already been dismissed by a Division Bench of this Court on merits.
18. The petition fails and is dismissed but without any order as to costs.
19. Petition dismissed.