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Nalamaty Venkata Durga Prakasa Rao and ors. Vs. the State of Andhra Pradesh - Court Judgment

LegalCrystal Citation
SubjectProperty
CourtAndhra Pradesh High Court
Decided On
Case NumberWrit Petn. No. 1159 of 1958
Judge
Reported inAIR1961AP98
ActsLand Acquisition Act, 1894 - Sections 6(1), 6(2) and 17(4)
AppellantNalamaty Venkata Durga Prakasa Rao and ors.
RespondentThe State of Andhra Pradesh
Appellant AdvocateK. Ramachandra Rao, Adv.
Respondent AdvocateAdv. General, ;3rd Govt. Pleader and ;A. Sambasiva Rao, Adv.
DispositionPetition allowed
Excerpt:
.....report, if any, made under section 5-a, sub-section (2) that any particular land is needed for a public purpose, a declaration shall be made to that effect, under the signature of a secretary to such government or of some other officer duly authorised to certify its orders, (2) the declaration shall be published in the official gazette and shall state the district or other territorial division in which the land is situate, the purpose for which it is needed, its approximate area, and, where a plan shall have been made of the land, the place where such plan may be inspected. he however, contends that in a case like the present, where the government has chosen to exercise its power under sub-section (4) of section 17 and has dispensed with the procedure prescribed under section 5-a,..........under the act for the acquisition of the lands on the ground that they were needed for a public purpose viz., for the construction of a high school building by the east godavari district board.the proceedings culminated in the issue of notices under section 9 of the act, inviting interested parties to put in their claims to compensation. the petitioners took the matter up to the high court of andhra, challenging the legality of the acquisition proceedings on the main ground that an enquiry as contemplated by section 5-a of the act read with rule 3(c) of the rules framed under the act, had not been held. the high court, in writ petition no. 591 of 1952 by an order dated 23rd august 1955, quashed the entire proceedings, holding that there had been no proper enquiry.3. nothing.....
Judgment:
ORDER

Basi Reddy, J.

1. This is a petition under Article 226 of the Constitution for the issue of an appropriate writ, order or direction calling for the records relating to and to quash G. O. Rt. No. 806 Education dt. 27th November, 1957 purporting to be a declaration under Section 6 of the Land Acquisition Act, 1894 (hereinafter referred to as the 'Act') and published in the Andhra Pradesh Gazette dated 11th September, 1958.

2. The facts leading up to this writ petition are not in controversy and are as follows:--

These land acquisition proceedings relate to the lands bearing Section No. 74/1 of Amzuru village in Ramachandrapuram Taluk, East Godavari District, and have had a long and chequered history. The lands in question are about 5 acres 12 cents in extent out of which the petitioners are the owners of 4 acres and are the lessees of the remaining 1 acre 12 cents. In July, 1951, proceedings were taken by the Government under the Act for the acquisition of the lands on the ground that they were needed for a public purpose viz., for the construction of a High School building by the East Godavari District Board.

The proceedings culminated in the issue of notices under Section 9 of the Act, inviting interested parties to put in their claims to compensation. The petitioners took the matter up to the High Court of Andhra, challenging the legality of the acquisition proceedings on the main ground that an enquiry as contemplated by Section 5-A of the Act read with Rule 3(c) of the Rules framed under the Act, had not been held. The High Court, in Writ Petition No. 591 of 1952 by an order dated 23rd August 1955, quashed the entire proceedings, holding that there had been no proper enquiry.

3. Nothing more was done for over two years. Then on the 5th December, 1957, the Government of Andhra Pradesh published a notification in the Andhra Pradesh Gazette under Section 4(1) of the Act, stating that the lands in question were needed for a public purpose, viz., the construction of a High School building by the East Godavari District Board, and by the same notification, in view of the urgency of the case, under Sub-section (4) of Section 17 of the Act, the Government directed that the provisions of Section 5-A shall not apply. The notification was in the following terms:--

'Whereas it appears to the Government of Andhra Pradesh that the land specified below is needed for a public purpose, to wit, for the construction of a High School building by the East Godavari District Board, notice to that effect is hereby given to all to whom it may concern in accordance with the provisions of Section 4(1) of the Land Acquisition Act I of 1894, as amended by the Land Acquisition (Amendment) Act XXXVIII of 1923; and the Governor of Andhra Pradesh hereby authorises the sub-collector, Rajahmundry, his staff and workmen to exercise the powers conferred by Section 4(2) of the Act. Under Sub-section (4) of Section 17 of the Act, the Governor of Andhra Pradesh directs that, in view of the urgency of the case, the provisions of Section 5-A of the Act shall not apply to this case.'

Then followed a description of the land along with the names of the owners and the present enjoyers.

4. It may be mentioned here that the above notification appears to have been issued by the Government on the 21st November 1957, that is to say, two weeks before the date of its publication in the Official Gazatte; but that is of little significance because under the Act, the acquisition proceedings are initiated by the publication of a preliminary notification in accordance with the terms of Section 4(1) of the Act.

5. It will be noticed that this notification was published in the Official Gazette on the 5th December, 1957, and the emergency power under Sub-section (4) of Section 17 of the Act was invoked with the result that the provisions of Section 5-A relating to the hearing of objections to the proposed acquisition and an enquiry with regard thereto, were dispensed with.

6. It would appear, however, that even before the publication of the notification under Section 4(1), a declaration under Section 6(1) of the Act had been made under the signature of the Secretary to Government on the 27th November 1957 in G. O. Rt. No. 806, Education, to the effect that the lands in question were needed for a public purpose.

7. That declaration was published in the Official Gazette about ten months later, i.e., on the 11th September, 1958. The declaration so published was as under:--

'Under Section 6 of the Land Acquisition Act, the Governor of Andhra Pradesh hereby declares that the lands specified below and measuring 5 acres, be the same a little more or less, are needed for a public purpose, to wit, for the construction of a High School and under sections 3 and 7 of the same Act, the Revenue Divisional Officer, Rajahmundry, is appointed to perform the functions of a Collector under the Act and directed to take order for the acquisition of the said lands. Under Sub-section (1) of Section 17 of the Act, the Governor of Andhra Pradesh further directs that the possession of the said lands may be taken on the expiry of 15 days from the date of publication of the notice mentioned in Section 9(1) of the Act. A plan of the lands is kept in the office of the Revenue Divisional Officer, Rajahmundry and may be inspected at any time during office hours.'

It will be observed that the publication of this notification was under Sub-section (2) of Section 6 of the Act and it included a direction to the Revenue Divisional Officer to take order for the acquisition of the lands and a further direction under Sub-section (1) of Section 17 to take possession of the lands on the expiration of 15 days From the publication of the notice under Section 9(1) of the Act.

8. In view of the contentions raised in this Writ Petition, it is important to note that the declaration under Sub-section (1) of Section 6 of the Act had been made even before the publication of the preliminary notification under Section 4. Sub-section (1) of the Act, although the said declaration was published in the official Gazette subsequent to the date of the publication of the preliminary notification.

9. Mr. K. Ramachandra Rao, the learned advocate for the petitioners, challenges the legality of the proceedings taken by the Government under the Act on three main grounds:

(1) That the Act being an expropriatory piece of legislation, the procedure prescribed thereinshould be faithfully and meticulously followed, for that is the only safeguard against a possible abuse or misuse of the power vested in the Government; but in this case, the mandatory provisions of Section 6(1) and Section 17(4) of the Act have been violated;

(2) that having regard to the previous history of the proceedings in respect of these very lands and particularly in view of the fact that the earlier proceedings had been quashed by the High Court on the ground that there had been no proper enquiry as contemplated by Section 5-A of the Act, the present proceedings initiated after two years by which the Government invoked the emergency power under Section 17(4) of the Act suspending the application of the provisions of Section 5-A, point to a 'mala fide', exercise of power; and

(3) that the proviso to Section 6 of the Act has not been complied with in: this case inasmuch as the compensation to be awarded for the 'property in question is to be paid by a private body viz., the Pamarm Board High School committee and not wholly or partly out of public revenues or some fund controlled or managed by a local authority.

10. As regards the last two points, I am satisfied, on a consideration of the material placed before me, that there is no substance in them. Neither the delay in starting, the present proceedings nor, the dispensing with the procedure prescribed by Section 5-A of the Act, establishes 'mala fides' on the part of the Government. The acquisition of the lands in question is indubitably for a public purpose viz. for the construction of a High School which would cater to the educational needs of a large number of villages in the concerned locality, and from the mere fact that the emergency power under Section 17(4) has been invoked, it cannot be predicated that the Government has acted 'mala fide' or in fraud of its power. In the previous Writ Petition, the High Court had quashed the entire land acquisition proceedings and so the Government had no option but to follow over again the procedure prescribed by the Act for the purpose of acquiring the lands in question.

11. On the affidavits filed' in this Writ Petition, It is apparent that the fund out of which compensation for the property sought to be acquired is to be paid, is controlled or managed by the District Board of East Godavari, although the fund is raised by collecting donations front the inhabitants of the villages, who are interested in starting a High School.

12. The more important question is whether the provisions of Section 6(1) and 'section 17(4) of the Act have been complied with. From what has been stated above, it is perfectly plain that it has not been done, inasmuch as the declaration under Sub-section (1) of Section 6 was admittedly made before the publication of the notification under Section 4(1) of the Act. The declaration under Section 6(1) was made on the 27th November, 1957 whereas the preliminary notification under Section 4(1) was published in the Official Gazette on the 5th December, 1957.

13. In this connection, it is necessary to notice the provisions of Sub-section (4) of Section 17 of the Act. Sub-section (4) provides;

'In the case of any land to which, in the opinion of the appropriate Government, the provisions of Sub-section (1) or Sub-section (2) are applicable, the appropriate Government may direct that the provisions of Section 5-A shall not apply, and if it does so direct, a declaration may he made under Section 6 in respect of the land, at any time after the publication of the notification under Section 4, Sub-section (1).'

So that this sub-section lays down that a declaration under Section 6 may be made at any time subsequent to the publication of the notification under Section 4(1). It is noteworthy that this Sub-section speaks of the making of a declaration under Section 6 and not of the publication of such declaration.

14. That there is a clear distinction between the making of a declaration as prescribed by Sub-section (1) and the publication of the declaration in the Official Gazette as contemplated under Sub-section (2), is apparent from the language of Section 6 itself, which, so for as is material for the present purpose, is as follows:

'Section 6(1): When the appropriate Government is satisfied, after considering the report, if any, made under Section 5-A, Sub-section (2) that any particular land is needed for a public purpose, a declaration shall be made to that effect, under the signature of a Secretary to such Government or of some other officer duly authorised to certify its orders,

(2) The declaration shall be published in the Official Gazette and shall state the District or other territorial division in which the land is situate, the purpose for which it is needed, its approximate area, and, where a plan shall have been made of the land, the place where such plan may be inspected.

(3) The said declaration shall be conclusive evidence that the land is needed for a public purpose; and after making such declaration, the appropriate Government may acquire the land in manner hereinafter appearing.'

15. It will be seen, therefore, that, Sub-section

(1) of Section 6 comprises of two parts -- firstly, the satisfaction of the Government that a particular land is needed for a public purpose and secondly, the making of a declaration to that effect under the signature of a Secretary to such Governmentor of a duly authorised officer.

16. Sub-section (2) provides for the publication of the declaration So made under Sub-section (1), while Sub-section (3) states the effect of such a declaration.

17. The learned Advocate-General, appearing for the Government, readily concedes that the provisions of Section 6(1) and Section 17(4) are mandatory and have therefore to be strictly complied with. He however, contends that in a case like the present, where the Government has chosen to exercise its power under Sub-section (4) of Section 17 and has dispensed with the procedure prescribed under Section 5-A, thereby signifying its satisfaction that theland in question is needed for a public purpose, the provisions of Sub-section (1) of Section 6, which require the making of a declaration that the land is needed for a public purpose, are inapplicable, and in such a case, the next step the Government has to take, is to publish a declaration in the Official Gazette as prescribed by Sub-section (2) of Section 6. The learned Advocate-General follows up this line of reasoning by arguing that in the present case, the impugned notification need not have been made by the Government and therefore, though made in contravention of the terms of Sub-section (4) of Section 17 of the Act, it does hot affect the validity of the subsequent publication of the declaration and the requirements of the Sub-section have been satisfied.

18. I am unable to accede to his contention for, in my opinion, if this contention is tenable, Sub-section (1) of Section 6 will not apply to any class of cases and the sub-section need not have been enacted at all. As 1 read the sub-section, even where the procedure prescribed under Section 5-A is followed, a declaration under Sub-section (1) of Section 6 is made only after the Government is satisfied that a particular land is needed for a public Purpose. Likewise, where by reason of the exercise of the emergency power under Sub-section (4) or Section 17, it may be presumed that the Government is satisfied that a particular land is needed for a public purpose, a declaration to that effect under the signature of a Secretary to the Government or of some duly authorised officer, has nevertheless to be made under Sub-section (1) of Section 6.

In neither case there is the antecedent satisfaction of the Government but with this difference, viz., that in the one case the satisfaction is reached after considering the objections to the proposed acquisition whereas in the other, without considering them because of the suspension of the procedure under Section 5-A. It is only thereafter that the latter part of Sub-section (1), of Section 6, dealing with the making of a declaration, comes into play and then follows the publication of the declaration under Sub-section (2). In either case the making of a declaration under Sub-section (1) of Section 6 is mandatory and is subsequent to and conditional on, the satisfaction of the Government as envisaged by the first part of the sub-section. The Legislature has thus interposed an intermediate step between the Government's satisfaction and the publication of the declaration and that step is the making of a declaration in the prescribed manner.

19. This view gains further support from the opening words of Sub-section (2) of Section 6 which are: 'The declaration shall be published in the Official Gazette'. The definite article 'The' obviously refers to the declaration made under Sub-section (1) and to none other.

20. This, in my opinion, is the true construction of Sub-section (1) of Section 6, and under Sub-section (4) of Section 17, a declaration may be made under Section 6 at any time after the publication of the notification under Section 4(1), and not before. As pointed out already, Sub-section (4) of Section 17 speaks of the making of a declaration under Section 6 and not of the publication thereof. Thus, the making of a declaration is something distinct from and differentto its publication; the former is governed by Sub-section (1) and the latter by Sub-section (2) of Section 6.

21. In this view, there has been a clear violation in the present case, of the mandatory provisions of Section 6(1) and Section 17(4) of the Act and consequently, the impugned declaration made on the 27-11-1957 and published on the 11th September 1958, is liable to be quashed.

22. In this connection, it is useful to refer to the observations of Chagla, C. J., in Maneklal Amritlal v. Collector of Ahmedabad, 0065/1954 : AIR1954Bom235 , in a case arising under the Bombay tand Requisition Act (XXXIII of 1958). In that case, the Collector of Ahmedabad had requisitioned a stall in a vegetable market, without complying with the provisions of Section 5 of that Act, Sub-section (1) of Section 5 of that Act provides:

'If, in the opinion of the State Government, It is necessary or expedient to do so, the State Government may by order in writing requisition any land for the purpose of the State or any other public purpose.'

23. There is a proviso to that sub-section which says that no building or part thereof wherein the owner or landlord or tenant, as the case may be, has actually resided for a continuous period of six months immediately preceding the date of the order, shall be requisitioned under that section. Then follows Sub-section (2) which says:

'Where any building or part thereof is to be requisitioned under Sub-section (1), the State Government shall make such inquiry as it deems fit and make a declaration in the order of requisition that the owner, the landlord or tenant as the case may be, has not actually resided therein for a continuous period of six months immediately preceding the date of the order and such declaration shall be conclusive evidence that the owner, landlord or tenant has not so resided.'

24. In that case, an enquiry was held but no declaration was made. It was, however, contended on behalf of the Government that even if an enquiry was obligatory, a declaration was not obligatory if the Government did not seek to take the benefit of the conclusiveness of the declaration. Overruling that contention, Chagla, C. J., observed:

'Then it is urged by the Advocate-General that whereas Sub-section (1) of Section 5 is substantive and confers power upon Government, Sub-section (2) is procedural. There the Advocate-General is right. Having conferred the power to requisition under Sub-section (1), the Legislature laid down the mode or manner in which that power should be exercised and the Legislature directed that the State Government must observe certain requirements before it should proceed to make the order of requisition. We have had occasion to point out in the past that when we are dealing with a legislation that seriously interferes with the rights of the citizens, we must scrupulously consider every safeguard that the Legislature has provided in favour of the citizens and we must give effect to every such safeguard, and if we find that the State Government has failed to comply with any of the conditions laid down by the Legislature,then, although the State Government may have the power to requisition, that power not having been exercised as the Legislature intended it should be exercised, the order of requisition is bad.'

25. I respectfully adopt the reasoning of the learned Chief Justice and hold that in the present case, the procedure prescribed by the Land Acquisition Act has not been strictly complied with and, therefore, the impugned declaration is bad and must be quashed.

26. In the result, the Writ Petition is allowed with costs. Advocate's fee: Rs. 100/-.

27. I should, however, like to make it clear that it is open to the State Government to make a fresh declaration under Section 6(1) of the Act, publish the same under Section 6(2) and proceed with the requisition of the lands in question in accordance with law. So far as the preliminary notification under Section 4(1) is concerned, no infirmity attaches to it.


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