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PETITIONER: DEEPAK PAHWA ETC.

       Vs.

RESPONDENT: LT. GOVERNER OF DELHI AND ORS.

DATE OF JUDGMENT22/08/1984

BENCH: REDDY, O. CHINNAPPA (J) BENCH: REDDY, O. CHINNAPPA (J) SEN, A.P. (J) VENKATARAMIAH, E.S. (J)

CITATION:  1984 AIR 1721            1985 SCR  (1) 588  1984 SCC  (4) 308        1984 SCALE  (2)239  CITATOR INFO :  RF         1986 SC2025  (6)  R          1988 SC1459  (16)

ACT:      Land Acquisition Act, 1894:      (i) Section 4(1) Requirements of-When satisfied-Whether contemplates  giving   public   notice   of   substance   of notification in the locality simultaneously with publication of notification  in official Gazette-Whether delay in giving public notice makes notification invalid. Held-Public notice must   be    contemporaneous   though    not   simultaneous- Contemporaneity involves  gap of  time But  not long  gap-In case of large gap further probe necessary.      (ii)  Section   5-A-Interpretation  of-Expression  ‘the issue of  the notification’  signifies  completion  of  twin process of  publication of  notification and  giving  public notice the  locality. The  period of  30 days to be reckoned from date  of publication  of notification or date of giving public notice whichever is later.      (iii) Section 17(4)-Whether mere pre-notification delay renders invocation of urgency provisions of s. 17(4) void.

HEADNOTE:      A  combined  notification  under  ss.4  and  17  and  a declaration under  s. 6  of the  Land Acquisition  Act, 1894 which were  published in  the official  Gazette in regard to the acquisition  of certain  lands were challenged in a writ petition before  the High  Court on  two grounds:  (1)  that there was  delay of  29 days  in giving public notice of the substance  of   notification  in   the  locality  after  the publication of  the notification  under s.  4 in the Gazette and that delay was fatal to the notification itself, and (2) that since  the  matter  was  under  correspondence  between various departments of the Government for nearly eight years before the  notification and  the declaration were published in the  Gazette, that  showed  that  there  was  no  urgency necessitating invocation  of s. 17(4) of the Act to dispense with the  enquiry under s. 5-A. The High Court dismissed the writ petition in limine. The present special leave petitions were directed against dismissal of the writ petition.      Dismissing the special leave petitions,

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^      HELD: Section 4(1) of the Land Acquisition Act does not pres- 589 cribe  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 Gazetter  or  immediately  thereafter.  Publication  in  the official Gazette  and public  notice in the locality are two vital  steps  required  to  be  taken  under  s.4(1)  before proceeding to  take the  next step of entering upon the land under s.  4(2). The  time factor is not the vital element of s. 4(1)  and there  is no  warrant  for  reading  the  words ‘simultaneously’ or  ‘immediately thereafter’  into s. 4(1), But since  the steps  contemplated  by  s.  4(2)  cannot  be undertaken unless  publication is  made  and  public  notice given as  contemplated by  s. 4(1),  it is implicit that the publication and  the public  notice must  be contemporaneous though not  simultaneous or  immediately after  one another. Naturally contemporeneity  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 publication in the Gazette and if there is  public notice in the locality, the requirements of s. 4(1)  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 that if the delay has caused prejudice to any one. [592-H and 593 A.B]      The  submission   that  if   the  publication   of  the notification in  the Gazette  is not immediately followed by public notice  in the  locality, it  may lead to a denial to the person  interested of  an opportunity  to object  to the acquisition under s. 5-A, has no force. Section 5.A provides that any  person interested  in  any  land  which  has  been notified under  s. 4(1) may object to the acquisition of the land or of any land in the locality within 30 days after the issue of the notification. The section does not refer either to the  date of  publication in  the official Gazette or the date of  public notice  of the substance of the notification in the locality. It speaks of ‘the issue of the notification which, in  the context,  can only  signify the completion of the prescribed  process-rather the twin process-of notifying the interested  public of  the proposed  acquisition in  the manner provided  for by  s. 4(1),  that is by publication in the  official  Gazette  and  giving  public  notice  in  the locality. Therefore,  the period  of 30 days may be reckoned from either  the date  of publication  in the Gazette or the date of  public notice  of the substance of the notification in the locality, whichever is later. [593C.G]      Khub Chand  v. State of Rajasthan, [1967] 1 S.C.R. 120, Narinderjit Singh  v State  of. Uttar Pradesh, AIR 1973 S.C. 552, State  of Mysore v. Abdul Rajak, AIR 1973 S.C. 2361 and Anjuman Ahmediyya,  Muslim Mission  v. State  AIR 1980  A.P. 246, referred to.      Sanjivaiah Nagar  Depressed and  Backward Classes Sangh v. District 590

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Collector, Hyderabad,  AIR 1983  A.P. 142  and Smt.  Shahnaz Salima v.  Govt. of A.P., W.P. No. 3353/76 decided by a Full Bench of  Andhra Pradesh  High  Court  on  Sept.  26,  1978, approved.      Satish Kapur  v. State  of Haryana,  AIR 1982  P. and H 276, Rattan  Singh v  State, AIR  1976 Pand H 279 (F.B.), C. Suryanarayana v.  Govt. of  Andhra Pradesh, AIR 1983 A P. 17 and Mohammad  Khawaza v.  Govt. of  Andhra Pradesh, AIR 1982 N.O.C. 270 (A.P), overruled.      It is  not possible  to agree  with the submission that mere pre-notification  delay would  render the invocation of the urgency  provisions void.  Very often persons interested in  the   land  proposed   to  be   acquired  make   various representations to  the concerned  authorities  against  the proposed  acquisition.   This  is   bound  to  result  in  a multiplicity of  enquiries, communications  and  discussions leading invariably  to delay in the execution of even urgent projects. Very  often the  delay makes  the problem more and mere acute  and increases  the urgency  of the necessity for acquisition. [596H; 597A and 596G-H]      Jaga Ram  v. State  of Haryana,  AIR 1971  S.C 1033 and Kashi Reddy Papaiah v. Govt of Andhra Pradesh. AIR 1975 A.P. 269, referred to.

JUDGMENT:      CIVIL APPELLATE  JURISDICTION: Special  Leave  Petition (Civil) No. 9013-9014 of 1984.      From the  Judgment and order dated the 3rd August, 1984 of the Delhi High Court in C. W. No. 1890 and 1891 of 1984)      Dr. L.  M. Singhvi  and  Mrs.  Bharati  Anand  for  the Petitioners.      The Judgment of the Court was delivered by      CHINNAPPA REDDY,  J. We are dismissing both the Special Leave Petitions.  But we  propose to  give our  reasons  for doing so, which we do not generally do, as our attention has been invited  to some  judgments of  High  Courts  which  we consider have been wrongly decided, proceeding as they do on a misunderstanding  of some  observations of  this Court.  A combined notification  under ss.  4 and 17 and a declaration under s. 6 of the Land Acquisition Act were published in the Delhi Extraordinary  Gazette on  18.6.1984 in  regard to the acquisition of certain lends in the Village Bijwasan for the purpose of  construction of  a ‘New Transmitting Station for the Delhi  Airport’. Public  Notice of  the substance of the notification under  s. 4  was alleged  to have been given in the locality  on 17.7.  1984. It  was also  alleged that the matter was  under correspondence between various departments of  the  Government,  for  nearly  eight  years  before  the notification and the declaration were publi- 591 shed in  the Gazette. A Writ Petition was filed in the Delhi High Court impugning the notification and the declaration on two grounds.  The first  was that  the delay  of 29  days in giving public notice of the substance of notification in the locality after  the publication of the notification under s. 4 in  the Gazette  was fatal to the notification itself. The second was that the very circumstance that a period of eight years was  spent in interdepartmental discussion showed that there was  no urgency  necessitating the  invocation of s 17 (4) of the Land Acquisition Act to dispense with the enquiry under s.  5-A. The High Court dismissed the Writ Petition in limine and  the present Special Leave Petitions are directed against such  dismissal. The  very two  questions which were

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raised before  the High Court were again urged before us and reliance was  placed by  Dr. L.  M. Singhvi, learned counsel for the  petitioners, on Narinderjit Singh v. State of Utter Pradesh,(1) Rattan Singh v. State,(2) S. K Gupta v. Union of India,(3)  Satish  Kapur  v.  State  of  Haryana(4)  and  C. Suryanarayana v. Govt. of Andhra Pradesh.(5) In addition, we have also perused Khub Chand v. State of Rajasthan,(6) State of Mysore  v. Abdul  Rajak,(7) Mohammad  KHawaza v. Govt. of Andhra  Pradesh(5)   and  Sanjivaiah   Nagar  Depressed  and Backward Classes Sangh v. District Collector, Hyderabad.(9). Section 4 of the Land Acquisition Act is as follows:-      (1)  "Whenever it appears to the appropriate Government           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 public  notice of  the  sub-stance  of  such           notification to  be given  at convenient places in           the said locality.      (2)   Thereupon it  shall be  lawful for  any  officer,           either generally  or specially  authorised by such           Government in  this behalf,  and for  his servants           and workmen:- 592           to enter  upon and  survey and  take levels of any           land in such locality; to dig or bore into the sub           soil; 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 intended line of the work if any           proposed to be made thereon;           to mark  such  levels,  boundaries  and  line,  by           placing marks and cutting trenches; and           where otherwise the survey cannot be completed and           the levels  taken  and  the  boundaries  and  line           marked, to cut down and clear away any part of any           standing crop, fence or jungle.          Provided  that  no  person  shall  enter  into  any      building or  upon any enclosed 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’ notice in writing of his      intention to do so."      It may  be noticed  at once  that s.  4  (1)  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 s.  4  (1)  before proceeding to  take the  next step of entering upon the land under s. 4 (2). The time factor is not a vital element of s. 4 (1)  and  there  is  no  warrant  for  reading  the  words ‘simultaneously’ or  ‘immediately thereafter’ into s. 4 (1). Publication in the official Gazette and public notice in the locality are  the essential elements of s. 4 (1) and not the simultaneity or  immediacy of the Publication and the Public Notice. But  since the steps contemplated by s. 4 (2) cannot be undertaken  unless publication  is made and public notice given as  contempleted by  s 4  (1), it is implicit that the publication and  the public  notice must  be contemporaneous though not  simultaneous or  immediately after  one another. Naturally contemporneity  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

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necessarily be  separated by  a gap  of time.  This does not mean that  the publication  and the  public  notice  may  be separated by  along 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 publication in the Gaz- 593 ette and  if there  is public  notice in  the locality,  the requirements of s. 4 (1) 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.      We may  consider here  an  argument  which  is  usually advanced against any time gap between the publication in the official Gazette  and the  public notice  in  the  locality. Section 5-A  provides that any person interested in any land which has  been notified  under s.  4 (1)  may object to the acquisition of the land or of and  in the locality within 30 days after  the issue of the notification. It is, therefore, suggested that if the publication of the notification in the Gazette is  not immediately  followed by  a public notice in the locality,  it  may  lead  to  a  denial  to  the  person interested of  an opportunity  to object to the acquisition. We think, that this is too narrow an interpretation of s. 5- A. Notice to interested persons of a proposed acquisition of land is  given by  publicising a  notification to the effect that land  in any  locality is  needed or  is likely  to  be needed for  any public purpose in two ways-first, by causing publication of the substance of the notification to be given at convenient  places in the locality. There is no reason to confine the  period of  30 days  prescribed by s. 5-A to one mode. The  period of 30 days may be reckoned from either the date of  publication in  the gazette  or the  date of public notice of the substance of the notification in the locality, whichever is later. In our view, that is the only reasonable and practical  way of construing s. 5-A so as to advance the object of  that provision,  which is to provide a reasonable opportunity to interested persons to oppose the acquisition. We particularly  notice that s. 5-A does not refer either to the date  of publication in the official Gazette or the date of public notice of the substance of the notification in the locality. It speaks of ‘the issue of the notification’. This we consider  is significant  and, in  the context, the words ‘the  issue  of  the  notification’  can  only  signify  the completion  of   the  prescribed  process-rather,  the  twin process-of notifying  the interested  public of the proposed acquisition in  the manner  provided for by s 4 (1), that is by publication  in the  official Gazette  and giving  public notice in the locality.      In Khub  Chand and  Ors. v. State of Rajasthan and ors. (supra), this  Court (Subba  Rao, CJ.  and Shelat, J.) ruled out the contention 594 that public  notice under  s. 4  (1) was  not mandatory, and held that  both publication  in  the  official  Gazette  and public notice in the locality were pre-requisites to further action under  s. 4  (2) of  the Land  Acquisition  Act  Non- compliance with  either of  the requisites  would render the land acquisition  proceedings void.  In Narinderjit Singh v. State of  Uttar Pradesh  (supra), the question was about the effect  of  the  failure  to  cause  public  notice  of  the substance of  the notification  to be  given  at  convenient

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places in  the locality. The view taken in Khub Chand’s case was reaffirmed  and it  was further  pointed  out  that  the dispensing with of the enquiry contemplated by s. 5-A by the issuance of  a notification  under s.  17 (4)  would make no difference to  the necessity for strict compliance with both the requisites of s. 4 (1). It was said:           "In our  judgment the  provisions of Section 4 (1)      cannot be  held to  be mandatory  in one  situation and      directory  in   another.  Section   4  (1)   does   not      contemplate any  distinction between  those proceedings      in which  in exercise of the power under Section 17 (4)      the appropriate  government directs that the provisions      of Section  5-A  shall  not  apply  and  where  such  a      direction  has   not  been  made  dispensing  with  the      applicability of  Sec. 5-A. It lays down in unequivocal      and  clear   terms  that   both  things   have  to   be      simultaneously  done   under  Section  4  (1),  i.e.  a      notification  has  to  be  published  in  the  official      gazette that  the land  is likely  to be needed for any      public purpose and the Collector has to cause notice to      be given  of the  substance  of  such  notification  at      convenient places  in the locality in which the land is      situated. The  scheme of  Section 4  is that  after the      steps contemplated  under  sub-section  (1)  have  been      taken the  officer authorised  by the Government can do      the various acts set out in sub-section (2)."      The  observation   that  "both   things  have   to   be simultaneously done"  has led  some High  Courts to conclude that simultaneity  of publication  in the gazette and public notice in  the locality is a mandatory condition of s. 4 (1) and so  to import  an obsessive  time factor.  It is not so. What was  apparently meant  to be  conveyed  was  that  both things had  to be  done before  the various  acts set out in sub-section (2)  could be  undertaken. The  question whether the publication  in the  official  Gazette  and  the  public notice in  the locality  had to  be simultaneous  or whether there could be a gap of time was not an issue at all in that case. In  State of Mysore v. Abdul Rajak (supra), this Court referring to s. 4 (1) held, "the section 595 prescribes two  requirements, namely,  (1) a notification to be published  in the  official Gazette and (2) the Collector causing to  give of the substance of such notification to be given at  convenient places in the concerned locality", and, "unless both  these conditions  are satisfied,  s. 4  of the Land Acquisition  Act cannot be said to have been complied". The court  also added  "It is  only when the notification is published in  the (official Gazette and it is accompanied or immediately followed  by the  public notice,  that a  person interested in  the property  proposed to  be acquired can be regarded to  have notice  of the proposed acquisition". This sentence alongwith  the sentence  "both things  have  to  be simultaneously done under s. 4 (1)" occurring in Narinderjit Singh’s case have led to some confusion in some decisions of the High  Courts. We  have already explained the observation in the  Narinderjit singh’s  case. We are unable to read the observations in  State of  Mysore v.  Abdul Rajak  as laying down any  general principle  that every time-gap between the publication in  the Gazette  and the  public notice  in  the locality is fatal 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 s.9 variety of circumstances 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

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in one  of the  reported  case  in  Andhra  Pradesh  Anjuman Ahmediyya, Muslim  Mission v.  State(1) or there may be some other justifiable  reason. This  court did  not lay down any general principle  that an  acquisition would be regarded as avoid if  the notification published in the official 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.      We do  not think  that it  is necessary to refer to the decisions of the High Courts in detail except to say that we consider Satish  Kapur v.  State of Haryana, Rattan Singh v. State, Suryanarayana  Reddy  v.  Andhra  Pradesh  and  Mohd. Khawaza v.  Govt. of  A. P.  were wrongly  decided and  that Sanjivaiah Nagar  Depressed and  Backward Classes  Sangh  v. District Collector, Hyderabad   was rightly decided. 596 In the  last mentioned  case, there  is reference to several earlier Division Bench judgment and the judgment of the Full Bench which  the learned judges had followed. In particular, the  learned   judges  have   referred  to   the   following observations of  a Full  Bench of  the Andhra  Pradesh  High Court in  Shahnaz Salima  v. Govt. of A.P. (a decision which for some unknown reason has not been reported in  any of the Law Reports);           "There is  no warrant  for the contention that the      publication in the official Gazette and the publication      of the  substance of  the  notification  at  convenient      places in  the said locality should be simultaneous and      be done  precisely at  the same  time. If that were the      intention of  the Legislature,  it could  have said so.      Something  which  is  not  in  the  section  cannot  be      imported into  it. The  publication of the substance of      S. 4  (1) notification  at  convenient  places  in  the      locality is  required out of anxiety of the Legislature      to make  it certain that it is brought to the notice of      the affected persons. What all that is required is that      before any  thing is  done as  contemplated by sub-sec.      (2), the  substance of  S. 4  (1) notification  must be      published in the locality of the land. Several times it      may  prove   to  be   a   physical   impossibility   if      simultaneous publication  is insisted  upon. It  is not      possible to think that the Legislature has provided for      an impracticable and at the same time unnecessary task.      What S.  4 (1)  requires is  that S. 4 (1) notification      must be  published in  the  official  Gazette  and  its      substance at convenient places in the said locality."      We agree with these observations.      The other  ground of attack is that if regard is had to the considerable  length of  time spent on interdepartmental discussion before  the  notification  under  S.  4  (1)  was published,  it   would  be   apparent  that   there  was  no justification for  invoking the  urgency clause  under s. 17 (4) and  dispensing with  the enquiry  under s.  5-A. We are afraid, we  cannot agree  with this  contention. Very  often persons interested  in the land proposed to be acquired make various representations to the concerned authorities against the proposed  acquisition. This  is bound  to  result  in  a multiplicity of  enquiries, communications  and  discussions

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leading invariably  to delay in the execution of even urgent projects. Very  often the  delay makes  the problem more and more acute  and increases  the urgency  of the necessity for acquisition. It is, therefore, not possible to agree with 597 the submission that more pre-notification delay would render the invocation  of the  urgency provisions  void. We however wish to  say nothing  about post-notification delay. In Jaga Ram v.  State of  Haryana, this  court pointed out "the fact that  the  State  Government  or  the  party  concerned  was lethargic at  an earlier  stage is  not  very  relevant  for deciding the   question  whether on  the date  on which  the notification was  issued, there was urgency or not." In Kash Reddy Papiah  v Govt  of Andhra Pradesh, it was held, "Delay on the part of the tardy officials to take further action in the matter  of acquisition  is not sufficient to nullify the urgency which  existed at  the time  of  the  issue  of  the notification and  to hold that there was never any urgency." In the  result both  the submissions  of the learned counsel for the  petitioners are  rejected  and  the  special  leave petitions are dismissed. H.S.K.     Petitions dismissed. 598