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B. Vijaya Laxmi Devi and ors. Vs. the Government of Andhra Pradesh and ors. - Court Judgment

LegalCrystal Citation
SubjectProperty
CourtAndhra Pradesh High Court
Decided On
Case NumberWrit Appeal No. 44 of 1970
Judge
Reported inAIR1971AP249
ActsLand Acquisition Act, 1894 - Sections 4(1) and 17(4)
AppellantB. Vijaya Laxmi Devi and ors.
RespondentThe Government of Andhra Pradesh and ors.
Appellant AdvocateB.P. Jeevan Reddy, Adv.
Respondent AdvocateGovt. Pleader
Excerpt:
property - illegal notification - sections 4 (1) and 17 (4) of land acquisition act, 1894 - government issued notification pertaining to land acquisition which contained many parts - last part of notification found to be illegal - contention that entire notification must be struck down on account of illegality in one part - contention turned down - illegal portion distinct and severable from earlier portions - illegal portion did not vitiate earlier portions of notification - only objectionable portion which suffers from legal infirmity to be quashed. - - it is therefore clear that section 4 notification is neither dependent on nor affected by any irregular or legal exercise of power under section 17(4). if the direction under section 17(4) is bad its invalidity cannot therefore..........with the enquiry. all that has been held therein was-'the state government has no jurisdiction to apply the provisions of sec. 17 (1) and (4) of the act to the land in dispute and to order that the provisions of section 5a of the act will not apply to the land.'of course further proceedings in that case were held to be invalid on account of the fact that the state government had no jurisdiction to order the collector to take over possession of the land. there is nothing to suggest that the notification under section 4(1) itself has been held vitiated. on the other hand the extent to which the publication was quashed has been expressly stated. para 23 specifically refers to the quashing of the notification by which 'the governor had applied section 17 (1) and (4) to the land in dispute.....
Judgment:

N. Kumarayya, C.J.

1. The question that falls for determination in this writ appeal is whether the notification duly made under Section 4 of the Land Acquisition Act must be held as void and liable to be quashed for the mere reason that it embodies at its end the direction of the Government issued in exercise of its powers under Section 17(4) to the effect that the provision of Section 5A of the Act shall not apply to the case, which direction is now held to be unwarranted in law as Section 17(4) did not apply at all to the facts of the case.

We may here extract the notification made under Section 4 which reads thus:

'Whereas it appears to the Government of Andhra Pradesh that the land specified below is needed for public purpose, to wit for the construction of a building for Badruka College of Commerce and Arts, Kanchguda. Hyderabad, notice to that effect is hereby given to all whom the provisions of Section 4(1) of the Land Acquisition (Amendment) Act XXXVIII of 1923 ..... and the Governor of Andhra Pradesh hereby authorises the Special Deputy Collector, Land Acquisition, Hyderabad District, his staff and watchmen to exercise the powers conferred by Section 4(2) of the Act. Under Sub-section 4 of Section 17(4) of the Act, the Governor of Andhra Pradesh, directs that in view of the urgencies of the case the provisions of Section 5A of the Act shall not apply to this case.x x x x x'

It is manifest that the above notification as published is but an amalgam of a notification under Section 4 and a direction under Section 17(4) of the Land Acquisition Act. Whereas the first two parts of the notification are concerned with Section 4 (1) and (2) respectively, the province of the last part is altogether different for it contains a direction by the Government as contemplated by Section 17(4) that Section 5A which relates to hearing of objections, making inquiry and decision on the objections shall not apply. The question of raising objections and making inquiry cannot arise unless a valid notification has been made under Section 4 of the Act. Publication of notification is thus condition precedent for raising objections which have to be necessarily raised within thirty days from the date of notification. So then the application of Section 5A must only be an aftermath of issuance of notification. The Government may be its direction in cases coming under sub-sections 1 and 2 of Section 17(4), dispense with the requirement of Section 5A under the provisions of Section 17(4). The occasion therefor arises only in the event of a valid notification under Section 4 being made. It is therefore clear that Section 4 notification is neither dependent on nor affected by any irregular or legal exercise of power under Section 17(4). If the direction under Section 17(4) is bad its invalidity cannot therefore affect or invalidate the said notification though it may vitiate the proceedings taken later, i.e., under Section 6 and succeeding sections. In this premises the question is if the direction under Section 17(4) is contained in the same notification as under Section 4 though at the end can the whole notification become bad? The answer must be in the negative. As already noticed the notification under Section 4(1) is contained in the earlier part. The need of acquisition is shown as for public purpose. A notification under Section 4(1) has to issue when the land is likely to be needed for public purpose. No illegality therefore can be attached to such notification. The notification as made under Section 4(1) is thus perfectly valid. Such a notification is complete when it is thus expressed and the land is determinately stated or described. The notification as made in the first part of the publication is, in point of fact, complete and stands by itself. Then again the second part of the publication is distinct and separate from the first part of publication. It seeks to advance the cause of sub-sec (2) of Section 4(1) and the Government for that purpose has thereby authorised the special Deputy Collector, his staff and watchman to exercise powers under Section 4(1). Thus this part of the publication in the Gazette is distinct from the notification under Section 4(1) contained therein and cannot therefore affect the said notification even if there be some irregularity therein. it is not the case of any of the parties either that the authorisation is vitiated. The only objection is to the last part of the publication, namely, exercise of powers under Section 17(4) which is bad in law. this part again must stand or fall by itself without affecting the earlier parts of the publication as it is distinct by itself and in substance and effect has no connection with the earlier parts. Notwithstanding this clear situation the learned counsel contends that if one portion of the publication is held to be void, the whole publication must be held to be invalid and hence it should be concluded that there was no valid notification under Section 4(1) of the Act. it passes our comprehension how the last part of the publication which is a direction under Section 17(4) can at all affect the notification contained in the first part of the publication which is quite in accord with law. If Section 4(1) notification is in order, merely because the direction under Section 17(4) has also been embodied in the latter portion of the publication the notification which is unaffected by such direction cannot become invalid. The latter portion cannot vitiate the former as both the portions are distinct and separate. They are in point of fact serverable. It is not possible to say that the latter is so inextricably intermixed with the former that it cannot be detached or separated. In these circumstances, it is not possible to hold that by reason of any infirmity in the proceedings taken after the notification, the notification under Section 4(1) itself becomes void or is liable to be quashed. Only the objectionable portion which suffers from any legal infirmity has to be quashed. That is what exactly our learned brother, Ramachandra Rao J. has done in this case

2. The learned counsel for the appellant, Mr. B. P. Jeevan Reddy, refers to the decisions of the Supreme Court in Sarju Prasad v. State of U. P. : AIR1965SC1763 . Raja Anand v. State of U. P. this Court in Ramalakshmamma v. State : AIR1967AP280 . he also contends that there is a conflict between the decision in Malliah v. Govt. of A. P., : AIR1967AP280 . We have given careful consideration to this submission. The decision in (1969)1 Andh Pra LJ 71 is in fact followed by our learned brother, Ramachandra Rao, J. Para (22) of the judgment in : [1967]1SCR373 does not advance the case of the appellant for no wherein that judgment has it been said that Section 4(1) notification itself becomes invalid by reason of the wrong application of Section 17(4) and dispensing with the enquiry. All that has been held therein was-

'The State Government has no jurisdiction to apply the provisions of Sec. 17 (1) and (4) of the Act to the land in dispute and to order that the provisions of Section 5A of the Act will not apply to the land.'

Of course further proceedings in that case were held to be invalid on account of the fact that the State Government had no jurisdiction to order the Collector to take over possession of the land. There is nothing to suggest that the notification under Section 4(1) itself has been held vitiated. On the other hand the extent to which the publication was quashed has been expressly stated. Para 23 specifically refers to the quashing of the notification by which 'the Governor had applied Section 17 (1) and (4) to the land in dispute and directed that the provisions of Section 5A of the Act should not apply to the land.' It necessarily follows that their Lordships did not intend to nor did they quash the notification so far as it related to Section 4(1).

3. The facts in : AIR1965SC1763 have no parallel in this case: for the argument therein was that the land being partly arable and waste and partly not being arable. Section 17(4) could be validly invoked and Section 5A enquiry could be consequently dispensed with. Which part of the land was arable, which part was not arable or waste was not specifically stated in the notification. In such circumstances, it is was held that the notification cannot be partly upheld and partly quashed. This decision does not advance the argument of the learned counsel in this case.

4. The decision in : AIR1967AP280 also does not expressly deal with the quashing of Section 4(1) notification. In our judgment the case in (1969) 1 Andh Pra LJ 71, has been correctly decided.

5. We therefore find no merits in this appeal. It is accordingly dismissed.

6. Appeal dismissed.


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