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PETITIONER: THE LAND ACQUISITION OFFICER, HYDERABAD URBANDEVELOPMENT AUT

       Vs.

RESPONDENT: MOHD. AMRI KHAN & ORS. ETC. ETC.

DATE OF JUDGMENT30/09/1985

BENCH: BHAGWATI, P.N. (CJ) BENCH: BHAGWATI, P.N. (CJ) PATHAK, R.S. SEN, AMARENDRA NATH (J)

CITATION:  1985 SCR  Supl. (3) 152  1986 SCC  (1)   3  1985 SCALE  (2)779

ACT:      Land Acquisition  Act,  1894,  Section  4(1)  and  Land Acquisition (Andhra  Pradesh Amendment  and Validation) Act, 1983,  Sections   3(1)  and   2  -  Acquisition  of  Land  - Publication of  Notification in  Official Gazette and public notice in the locality - Whether both should be simultaneous or immediately  after one  another -  Amended  Section  4(1) laying down  the limit  of the  time gap  to  40  days  with retrospective effect - Delay of over two months in the issue of public notice - Whether invalidates the Notification.

HEADNOTE:      The Government  of Andhra Pradesh issued a Notification under Section  4 sub-sec.  (1) of  the Land Acquisition Act, 1894 for  acquiring certain  land for  the  purpose  of  the Hyderabad Urban  Development Authority  (HUDA) and published it in the Andhra Pradesh Gazette on 4th August, 1977. Public notice of  the substance  of the  Notification was  given at convenient places in the locality, after a period of about 2 months,  on   3rd  Oct.,   1977.  On  10.1.1979,  the  State Government issued  another Notification  under Section  6 of the Act excluding some land and declaring that the remaining area af  land was  needed for  the purpose of HUDA. The Land Acquisition Officer  made an  Award on  27th July  1981  and issued notices  to the  respondents to deliver possession of the land  comprised in  the area notified under Section 6 of the Act.  The respondents  challenged the  validity  of  the aforesaid Notifications  in a  writ petition before the High Court. The  High Court,  following  an  earlier  Full  Bench decision dated 3rd December, 1982, allowed the writ petition on the ground that local publication of the substance of the Notification under  sec. 4  sub-sec.(1) was  not made on the same day  on which  the Notification  was published  in  the Official Gazette  and,  therefore,  the  Notification  under Section 4 sub-sec.(1) was invalid and the Notification under Section 4  sub-section  (1)  being  the  foundation  of  the jurisdiction to  proceed further  with the  acquisition, the Notification under Section 6 must also fail. 153      Subsequent to  the delivery of the judgment by the High Court, the  Supreme Court  in Deepak  Pahwa v.  Lt. Governor

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Delhi Ors.  [1984] 4  SCC 308  held that there is nothing in sub-sec.  (1)   of  Section   4  which   requires  that  the publication in the Official Gazette and public notice in the locality must  be  simultaneous  or  immediately  after  one another, but  there  should  not  be  a  large  gap  between publication in the Gazette and public notice in the locality as would be indicative of break in the continuity of action. However, before  the decision  in Deepak  Pahwa’s case,  the Andhra  Pradesh  Legislature  passed  the  Land  Acquisition (Andhra Pradesh  Amendment (Validation) Act 1983 (For short, the Amending Act) with retrospective effect from 12th Sept., 1975. Sub-section  (1) of  section 4  of the  Act after  the amendment provided  that the  collector shall,  within forty days from  the date  of publication  of  such  Notification, cause public notice of the substance of such Notification to be given at convenient places in the locality.      In appeals  to the  Supreme Court, the appellant argued (i) that  the Legislature  proceeded on  the assumption that the Full  Bench Judgment  of the  Andhra Pradesh  High Court represented the  correct law  on the  subject and  it was on that assumption  that the  Amending Act  was enacted  by the Legislature. If,  on the  Full Bench  Judgment of the Andhra Pradesh High  Court being  reversed by  the Supreme Court in Deepak pahwa’s  case, the assumption made by the Legislature turned out  to be  incorrect  and  it  was  found  that  the Legislature proceeded  on an  erroneous view  of the  law in enacting  the  Amending  Act,  the  Amending  Act,  must  be considered superfluous  and not  the Amending  Act, but  the correct law  as it  prevailed prior to the Amending Act must be applied;  and  (ii)  that  the  legislature  enacted  the Amending Act for the purpose of validating acquisitions made after 12th  September, 1975 which were liable to be declared invalid on  account of the Full Bench Judgment of the Andhra Pradesh  High  Court  and  it  could  never  have  been  the intention of  the Legislature  to  invalidate,  acquisitions which were  valid when  made and  therefore section 2 of the Amending Act which introduced the amendment in sub-s. (1) of sec. 4  should not  be read  as having retrospective effect, but should be construed as prospective in operation.      Dismissing the appeals, ^      HELD: (i)  The  retrospective  amendment  made  by  the Amending Act  in sec.  4 sub-sec.  (1) of the Act completely invalidates the  Notifications under  sec. 4  sub-s. (1) and sec. 6 issued by the 154 Andhra Pradesh Government and the Judgment of the High Court quashing these  Notifications has  therefore to be sustained though on  a ground  different from  that which found favour with the  High Court.  Whatever be  the reason for which the Legislature enacted the amending Act, the Amending Act is on the Statute  book and  is in  force with  effect  from  12th Sept., 1975  and it  must be  given effect  according to the plain natural  meaning of  its words. There can be no ground for denying  to the  amendment  in  sub-s.  (1)  of  sec.  4 retrospective effect,  which sub-s.  (3) of  sec. 1  of  the Amending Act  expressly directs that it shall have. In fact, there is  no inconsistency between the mandate of sub-s. (1) of sec. 4 and the law as declared by Supreme Court in Deepak Pahwa’s Case.  What the  amended sub-sec. (1) of sec. 4 does is to  legislatively lay  down the  limit of  the  time  gap beyond which  it must  be presumed  that there is a break in the continuity of action. [155 B-C; 159 F-G; 160 C-D]      1. (ii) The requirement laid down in sub-s. (1) of sec. 4 as  it  stood  from  and  after  12th  Sept.,  1975  would

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obviously apply  to every  Notification under  sub-s. (1) of sec. 4 issued by the appropriate Government on or after 12th Sept., 1975.  If in  case a Notification issued under sec. 4 sub-sec. (1)  on or  after 12th Sept., 1975 public notice of the substance  of such  Notification is  not  given  in  the locality within  forty days  from the date of publication of such  notification   in  the   Official  Gazette,  it  would introduce a  fatal infirmity invalidating such notification. [158 D-F]

JUDGMENT:      CIVIL APPELLATE  JURISDICTION : Civil Appeal Nos. 5839- 42 of 1983.      From the  Judgment and  Order  dated  2.3.1983  of  the Andhra Pradesh  High Court  in W.P.  No. 5538,5563,5644  and 5722 of 1981.      P.P. Rao,  T.V.S.N. Chari  and Ms.  V. Grover  for  the Appellant in C.A. No. 5839 of 1983.      T.V.S.N. Chari  and Ms. V. Grover, for the Appellant in C.A. Nos. 5840-42 of 1983.      R.P. Bhatt,  K. Rajendra  Choudhary and  K.S. Choudhury for the Respondent in C.A. No. 5839 of 1983.      K.  Rajendra  Choudhury  and  K.S.  Choudhury  for  the Respondent in C.A. Nos. 5840-42 of 1983. 155      The Judgment of the Court was delivered by      BHAGWATI, C.J.  These appeals  by special  leave  would have  perhaps   met  with  a  different  fate  if  the  Land Acquisition Act,  1894 in  its application  in the  State of Andhra Pradesh  had not been amended by the Land Acquisition (Andhra  Pradesh   Amendment  and   Validation)  Act,   1983 (hereinafter  referred   to  as   the  amending   act)  with retrospective  effect   from  12th   September,  1975.   The retrospective amendment  made by the Amending Act in section 4  Sub-sec.  (1)  of  the  Act  completely  invalidates  the Notifications under  Sec. 4 Sub-sec.(1) and Sec. 6 issued by the Andhra  Pradesh Govt. and the Judgment of the High Court quashing these  Notifications has therefore to be sustained. The facts  giving rise  to these  appeals are few and may be briefly stated as follows:      The Government  of Andhra Pradesh issued a Notification under Sec.  4 Sub-sec.(1)  stating that  a total  area of 35 acres and 35 gunthas was likely to be needed for the purpose of the  Hyderabad Urban  Development Authority  (hereinafter referred to as (HUDA.) The Notification was published in the Andhra Pradesh Gazette on 4th August, 1977 and public notice of the substance of the Notification was given at convenient places in the locality, after a period of about 2 months, on 3rd Oct.  1977. Thereafter  an inquiry under Sec. 5-A of the Act was  held by the Special Land Acquisition Officer and as a result of the inquiry, the Andhra Pradesh Govt. decided to exclude an area of 6 acres 6 gunthas belonging to one Gaytri Devi Co-operative  Housing Society and issued a Notification under Sec. 6 of the Act on 10th January, 1979 declaring that the remaining  area of  land admeasuring 29 acres 29 gunthas was needed  for the  purpose of (HUDA). Notices under Sec. 9 were then issued to the respondents in these appeals who are the owners  of different  parcels of  land comprised  in the area notified under Sec. 6 and after holding an inquiry, the Special Land Acquisition Officer made an Award on 27th July, 1981 and issued notices to the respondents calling upon them to deliver  possession of the land acquired. The respondents thereupon filed  writ petition  in the  High Court of Andhra

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Pradesh challenging  the validity of the Notifications under Sec. 4  Sub-sec. (1) and Sec. 6 issued by the Andhra Pradesh Government.      There were  several contentions raised on behalf of the respondents   against   the   validity   of   the   impugned Notifications but,  barring one,  all were  rejected by  the High Court.  The one  contention which found favour with the High Court was that local 156 publication of  the substance of the Notification under Sec. 4 Sub-sec.  (1) was  not made  on the  same day on which the Notification was  published in  the Official Gazette, but it was made  almost 2  months later  and the Notification under Sec.  4   Sub-sec.  (1)   was  therefore   invalid  and  the Notification under  sec. 4  Sub-sec.(1) being the foundation of the jurisdiction to proceed further with the acquisition, the Notification  under Sec.  6 must  also  fail.  The  High Court, following  an earlier Full Bench decision rendered by it on  3rd December,  1982 in Writ Petition No. 5722 of 1981 and other allied writ petitions accepted this contention and quashed the notifications under Sec. 4 Sub-Sec. (1) and Sec. 6. The  Land  Acquisition  Officer  representing  the  State thereupon preferred  the present  appeals with special leave obtained from this Court.      The principal  question which  would seems  to arise in these appeals  is as  to whether the High Court was right in taking the view that on a true interpretation of Sec. 4 Sub- sec.(1) public  notice of  the substance of the Notification under that section must be given in the locality on the same day on  which the  Notification is published in the Official Gazette and  if  it  is  not  whether  that  would  have  an invalidating consequence.  There  was  no  decision  of  the Supreme Court  on this  question at  the time  when the High Court gave  its Judgment in the present case, but subsequent to the  delivery of  the Judgment  by the  High Court,  this question came  up for  consideration before  a Bench of this Court in special leave petitions directed against a Judgment of the  Delhi High  Court which  had taken  a view different from that  taken in  the present  case by the Andhra Pradesh High Court. This Court held in a Judgment reported in Deepak Pahwa v.  Lt. Governor Delhi and Ors. [1984] 4 SCC 308, that though publication in the Official Gazette and public notice in the  locality are  two vital  steps required  to be taken under  sub-sec.(1)   of  sec.  4  without  which  the  steps contemplated  under   Section  4   Sub-sec.(2)   cannot   be undertaken, there  is nothing in sub-sec.(1) of sec. 4 which requires that  the publication  in the  Official Gazette and public notice  in  the  locality  must  be  simultaneous  or immediately after  one another.  This Court pointed out that what sub-sec.(1)  of sec.  4 requires is that publication in the Official  Gazette and public notice in the locality must be contemporaneous  but  contemporaneity  does  not  involve simultaneity or  immediacy. There  is bound  to be  a gap of time between  publication of the Official Gazette and public notice in  the locality  but what  is necessary is that they should not be separated by such a long interval of time that the continuity of action may appear to be broken by a 157 deep gap.  If there  is publication in the Gazette, observed this   Court, and  if there is public notice in the locality the requirements  of sub-sec.(1) of sec.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  bonafides  in  the  proceedings  for acquisition. If  the Notification  and the public notice are

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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 any one. The  Judgment  impugned  in  the  present  appeals  was clearly over-ruled  by this  decision in Deepak Pahwa’s case (supra) and  it was held that Notifications under sec.4 sub- sec.(1) and  sec. 6  could not  be struck  down  as  invalid merely on  the ground that public notice of the substance of the Notification  under sec.  4 sub-sec.(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’s case (supra) 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. But  before the decision in Deepak Pahwa’s case (supra) came  to be  given by this Court, the Andhra Pradesh Legislature enacted  the Amending  Act which came into force with effect from 23rd June, 1983 and it is this Amending Act which renders  it unnecessary  for us to consider whether on the application  of the  ratio of  the  decision  in  Deepak Pahwa’s case  (supra) the impugned Notification under sec. 4 sub-sec. (1)  can be  sustained or it is liable to be struck down as invalid.      We may  now proceed to refer to the relevant provisions of the  Amending Act.  The Amending  Act was  passed by  the Andhra Pradesh  Legislature  in  order  to  counter-act  the effect of the Full Bench decision of the Andhra Pradesh High Court in  W.P. No.  5722  of  1981  and  other  allied  writ petitions where  inter alia  it was held that publication in the Official  Gazette and public notice in the locality must be on  the same  day or  else the  Notification under sec. 4 sub-sec.(1) would be invalid. The Amending Act was therefore given  retrospective   effect  and  sub-sec.(3)  of  sec.  1 expressly enacted  that the  Amending Act shall be deemed to have -  come into  force  on  12th  September,  1975.  Every provision in the Amending Act must therefore a fortiorari be deemed to have come into effect from the date 158 namely 12th  September, 1975.  Section 2 of the Amending Act provided that  in the  Land Acquisition  Act,  1984  in  its application to  the State  of Andhra  Pradesh for  the words "the Collector shall cause", the words "the Collector shall, within forty  days from  the date  of  publication  of  such Notification, causes,  shall be substituted. Sub-sec. (1) of sec. 4  in its  application to  the State  of Andhra Pradesh therefore read  as follows  with effect from 12th September, 1975:           "Whenever it  appears to an appropriate Govt. that           the land in any locality is needed or is likely to           be needed  for public  purpose, a  Notification to           that effect  shall be  published in  the  Official           Gazette and the Collector shall, within forty days           from the date of publication of such Notification,           cause public  notice  of  the  substance  of  such           Notification to  be given  at convenient places in           the locality". What therefore  sub-sec. (1)  of sec. 4 as it stood from and after  12th   September,  1975   provided   was   that   the Notification under  that section  shall be  published in the Official Gazette  and public notice of the substance of such Notification shall  be given  in the  locality "within forty

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days from  the date  of publication  of such  Notification." This requirement would obviously apply to every Notification under sub-sec.(1)  of sec. 4 issued by the appropriate Govt. On or  after 12th  Sept., 1975. If in case of a Notification issued under  sec. 4 sub-sec.(1) on or after 12th September, 1975, public notice of the substance of such Notification is not given in the locality within forty days from the date of publication of such notification in the Official Gazette, it would  introduce   a  fatal   infirmity  invalidating   such Notification. Here  in the  present case,  the  Notification under sec.  4 sub-sec.  (1) was  published in  the  Official Gazette on  4th  August,  1977  but  public  notice  of  the substance of  such Notification was given in the locality as late as  3rd October,  1977 i.e.  more than forty days after the date of publication of such Notification in the Official Gazette. There  was therefore  clearly a  violation  of  the mandate enacted  in sub-sec.(1)  of sec.  4 as it stood from and after  12th September,  1975 and  the Notification under sec. 4  sub-sec.(1) was liable to be struck down as invalid, though on  a ground  different from  that which found favour with the High Court.      The  learned   counsel  appearing   on  behalf  of  the appellant however  made a  valient  but  futile  attempt  to escape from  the consequence  of retrospective  amendment of sub-sec. (1) of sec.4 159 by  contending  that  sec.  2  of  the  Amending  Act  which introduced the  amendment in  sub-sec. (1)  of sec. 4 should not be  read as   having retrospective effect, but should be construed as prospective in operation. The argument urged on behalf of the appellant was that the Legislature enacted the Amending Act for the purpose of validating acquisitions made after 12th  September, 1975 which were liable to be declared invalid on  account of the Full Bench Judgment of the Andhra Pradesh High Court in W.P. No. 5722 of 1981 and other allied writ petitions and it could never have been the intention of the Legislature  to invalidate acquisitions which were valid when made.  The Legislature,  contended the learned counsel, proceeded on  the assumption that the Full Bench Judgment of the Andhra Pradesh High Court represented the correct law on the subject  and it was on that assumption that the Amending Act was  enacted by  the Legislature.  If, on the Full Bench Judgment of  the Andhra Pradesh High Court being reversed by this Court  in Deepak  Pahwa’s case  (supra) the  assumption made by  the Legislature  turned out  to be incorrect and it was found  that the  Legislature proceeded  on an  erroneous view of  the law  in enacting the Amending Act. The Amending Act,  argued   the  learned   counsel,  must  be  considered superfluous and not the Amending Act, but the correct law as it prevailed prior to the Amending Act must be applied. This argument urged on behalf of the appellant is wholly specious and must  be rejected.  It is  an argument of despair and it has only  to be  stated in  order  to  be  rejected.  It  is impossible  to  accept  the  proposition  that  because  the Amending Act  proceeded on  an erroneous view of the law, it must be  considered superfluous  and must be deprived of all effect. Whatever  be the  reason for  which the  Legislature enacted the Amending Act and here the reason no doubt was to set at  naught the  effect of the Full Bench Judgment of the Andhra Pradesh  High Court  - the  Amending Act  is  on  the statute  book   and  is  in  force  with  effect  from  12th September, 1975 and it must be given effect according to the plain natural  meaning of  its words. Sub-sec. (3) of sec. 1 of the  Amending Act  provides in  the clearest  terms,  not susceptible of  any ambiguity  or doubt  that  it  shall  be

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deemed to  have  come  into  force  with  effect  from  12th September, 1975.  It does  not carve  out any  exception  in relation to sec. 2 of the Amending Act and that section must also therefore,  according to  the clear and express mandate contained in  sub-sec. (3) of sec. 1, be deemed to have come into effect  on 12th September, 1975. It is true that if, in case of a Notification under sec. 4 sub-sec.(1) issued after 12th September, 1975, there is a gap of more than forty days between the  date of its publication in the Official Gazette and the date. 160 When public  notice  of  its  substance  was  given  in  the locality,     sub-sec.  (1)   of  sec.  4  as  amended  with retrospective effect  from 12th September, 1975 would render such Notification  invalid. But  that can  be no  ground for denying  to   the  amendment   in  sub-sec.(1)   of  sec.  4 retrospective effect,  which sub-sec.(3)  of sec.  1 of  the Amending Act  expressly directs that it shall have- There is in fact  to our mind no inconsistency between the mandate of sub-sec. (1) of sec. 4 and the law as declared by this Court in Deepak  Pahwa’s case  (supra). This  Court said in Deepak Pahwa’s case  that there  should not  be such  a  large  gap between publication  in the Gazette and public notice in the locality as  would be  indicative of break in the continuity of action.  What the  amended sub-sec. (1) of sec. 4 does is to legislaturely  lay down  the limit of the time gap beyond which it  must be  presumed that  there is  a break  in  the continuity of  action. We must therefore reject the argument of the  learned counsel appearing on behalf of the appellant that sub-sec. (3) of sec. 1 of the Amending Act must be read down so  as to  exclude from its operation Section 2 of that Act.      We accordingly  dismiss the  appeals though on a ground different from  that which  appealed to the High Court. Each party will bear and pay its own costs throughout. M.L.A                                     Appeals dismissed. 161