Sri M.J Swamy And Ot... v. Special Deputy Colle...

(1) Various allegations have been made in this batch of writ petitions, challenging the validity of the acquisition of the land comprising 8 acres and by the government at the instance of visakhapatnam urban development authority for the purpose of l. A. D. Scheme in respect of tourism development at visakhapatanam. However, it is needless to adjudicate on all the points because one of the grounds is that when there is an earlier notification in respect of the same land for acquisition, the second notification for the same purpose and in respect of the same land cannot be notified unless the earlier one is withdrawn within the meaning of section 48 of the land acquisition act, 1894 or earlier one is cancelled within the meaning of ssc. 21 of the general clauses act, 1897. The relevant facts in brief are:

(2) The first notification was published under section 4 (1) on 5 - 1 - 1981. The 5 - a enquiry was conducted thereafter and evidently section 6 declaration was made on 4 - 7 - 1983. Thereafter section 9 (3) and section 10 notices were given on 5 - 12 - 1983. Then second notification under section 4 (1) for the same purpose in respect of the same land has been published on 1 - 6 - 1984. It is this notification that is impugned on the grounds inter alia that the second notification cannot be issued unless the first notification of 5 - 1 - 1981 is either withdrawn under section 48 of the land acquisition act or is cancelled within the meaning of section 21 of the general clauses act, 1897. It is also challenged that the purpose for which it is sought to be acquired is not clear and therefore it is difficult for the persons interested within the meaning of section 4 (1) to tender objections. However, in so far as the first contention is concerned it is though canvassed on behalf of the respondent - visakhapatnam urban development authority stating that 4 (1) , notification issued earlier was void in view of the amendment of the land acquisition act, 1894 on 29 - 6 - 1983 to the effect that if the substance of the notification is not published in the locality within 40 days from the date of publication of sec. 4 (1) notification then the sec. 4 (1) notification will have to be quashed. Since the sec. 4 (1) notification being void, the same need not be withdrawn and therefore the second notification is perfectly valid and legal. I apprehend the contentions are not wellfounded. A division bench of this court in s. Anjuman ahmediya muslim mission vs. State of a. P. Held that unless, the notification once issued under section 4 (1) is either withdrawn under section 48 of the land acquisition act or is cancelled under section 21 of the general clauses act, the second notification cannot be issued and if issued the same is invalid. Relying upon the same decision once again this court reiterated in b. Bapanayya naidu vs. Government of andhra pradesh. That apart the supreme court in a recent case in c. K. Narayana chary vs. P. Ashanna held that if there is time gap of more than 40 days between the publication of the final gazette and giving of the public notice of the substance of the notification in the locality, the notification would be liable to be struck down as invalid. Hence it is not possible to accede to the argument of the learned counsel for the respondents to the effect that non - publication of the notice by way of substance in the locality cannot render the notification void but only invalid. Hence following the earlier decisions it is once again reiterated that second notification published on 1 - 6 - 1984 under section 4 (1) is not a valid one in view of the fact that the first notification, dated 5 - 1 - 1981 was still in subsistence and unless that was withdrawn which admittedly has not been done, the second notification cannot be issued and therefore it cannot be held to be a valid one.