K. Yadaiah And Others v. Government Of Ap And Others

(Judgment of the Bench delivered by Madhava Reddy, J).

2. Although several other points are taken the principal question that arises for consideration in these writ petitions is whether the delay in taking possession of the lands acquired unper the Land Acquisition Act after Page: 241invoking the urgency clause and dispensing with the enquiry under section 5-A renders the action of the Governmeut in invoking the urgency clause invalid. On this question conflicting views have been expressed by two Division Benches of this Court. In N. Ramanna v. The Collector, West Godavari 1971 ALT 556 Krishna Rao, J., speaking for the Bench held:

“If Section 5-A was dispen.sed with, if there is delay in the matter of either the declaration or the notice, under secs. 9 and 10 which should follow, the delay ipso facto does not vitiate the direction disp:msing with Sec. 5-A. All that is to be seen is whether on the date of dispensing with Sec. 5-A, there was urgency and the authority dispensing with Sec. 5-A felt it necessary to direct that sec 5-A enquiry be dispensed with. The fact that subsequently the concerned offices of the Government did not take further action by invoking the other provisions of the Act expeditiously, by taking possession of the land, be issuing notices under Sections 9 and 10 would not have the effect of rendering the dispensing with Section 5-A enquiry illegal or void.”

3. In taking this view the decisions to the contrary rendered earlier in Kothapalli Yanadi Reddy v. State of A.P 1973 (II) A.P.L.J 408 Madhusudhan Reddy v. State of A.P 1970 (I) All WR 43 and G. Adinarayana v. State of A.P 1974 (II) An WR 351 were not referred, and reference was made only to the Judgemets reported in Kasi Reddy Papaiah v. States AIR 1975 AP 279 T. Vanamulu v. Government of A.P 1971 (I) An WR 248 and to an unreported decision in Writ Appeal No. 370/1976 judgment dated 20-9-1976.

4. A later Bench consisting of Raghuvir and Narsinga Rao, JJ., in Writ Petition No. 1471/77 took a contrary view. But it would appear that only a decision supporting that view was referred before that Bench and even the reported decisions taking a contrary view were not cited In these circumstances as observed by the Supreme Court in Jai Sri Sahu v. Rajdewan Dubey AIR 1962 SC 83 Tribhovandas v. Ratilal AIR 1968 SC 372 and Budhan Singh v. Babi bue AIR 1970 SC 1880 we feel that the proper course is to refer the matter for the consideration of a Full Bench of this Court. As the question referred to above is arising in almost all land acquisition cases, now listed for hearing we deem it advisable that this case be considered by a Full Bench next week. Papers may be placed before the Hon'ble The Chief Justice for the constitution of a Full Bench, if possible next week itself.

5. W.P Nos. 5644 etc. of 1981 out of the above batch originally came on for hearing on 19-7-1982 before the Hon'ble Mr. Justice Ramachandra Rao Page: 242and the Hon'ble Mr. Justice Labhminarayana Reddy and the Court delivered the following judgment.

JUDGMENT

6. Several important questions arise in the writ petitions. One of the questions that arises in these Writ Petitions is whether the publication of the substance of the notification in the locality under Sec. 4 (I) should be made simultaneously or at any time and whether any delay in so publishing would vitiate the entire acquisition proceedings. Hence the p. pers??? may be placed before the Honourable the Chief Justice for posting the case before a Full Bench,

7. Pursuant to the aforesaid orders of the Division bench dated 18-3-1979 and 19-7-1982 referring the said writ petitions to the Full Bench these said writ petitions and other connected writ petititions and writ Appeals (Individual Judgments in each case separetly delivered) coming on for final hearing this day before the Honourable Mr, Justice P.A Choudary the Honourable Mr. Justice P. Ramachandra Raju, and the Honourable Mr. Justice Kodandaramayya and upon hearing the arguments of Advocates on records herein on both sides, in the respective W. Ps. and Writ Appeals the Court delivered the following:—

(Judgment of the Full Bench delivered by P.A Choudary J. for himself and P. Ramachandra Raju J.)

8. The petitioners in the different writ petitions are all owners of lands which are sought to be compulsorily acquired by the State of Andhra Pradesh applying the provisions of that nearly one hundred years old Land Acquisition Act as amended by the recent Madras Act XXI (hereinafter referred to some times as ‘the Act’). In most of these cases, the purpose of acquisition is to provide house-sites for Harijan unfortunates. It must, therefore, be admitted that such acquisitions are for a public purpose, because Harijans belong to a Hindu caste that has been degraded for ages by denying the ordinary rights and privileges of association by a socially retrograde Hindu social order while subjecting them all the while to its inequalities, indignities and torments. Harijans are truly the hewers of Wood and drawers of water of the Hindu society. But, for law, it is not enough that goal is lawful but the means must also be legal. It is hardly necessary to say that the object in setting up these courts is to ensure that State Power is exerted for achievement of lawful purpose through lawful means. The legal question presented here is one of right procedure to be adopted by the State in acquiring private lands under the Act.

9. Land Acquisition Act assuming the power of eminent domain as belonging to the state provides merely for the procedure to be adopted for asquiring private land for public purpose. The act contains about Page: 24355 sections. But, for the purpose of our present debate, consideration of less than a dozen of those sections is all that is necessary.

The initiatory action:—

10. The initiatory State action for acquisition of lands should be taken under Sec. 4 (1) of the above Act. Such action consists in publication of notification in the Government Gazette (hereincalled Gazette Notification) proposing to acquire a particular piece of land and causing publication of the substance of such notification in the locality (hereinafter called ‘local publication’). In some of these cases, local publication was made with a time lag of just a few days after the Gazette notification. In others, local publication was made a few weeks after the gazette notification and yet in some others more than thirty days after the date of Gazette notification. The petitioners argued that the requirement of the Act is that the local publication of the substance of the Gazette notification under the latter part of Section 4(1) of the Act should be done simultaneously and on the same day with the Gazette notification under the earlier the : part of Sec. 4(1) of the Act. They argue that, as Section 4(1) is held to be mandatory, simultaneous local publication (S.L.P for short) becomes a mandatory part of Section 4(1). They argued on that basis that wherever the State authorities failed to make such simultaneous publication (in many cases there is such a failure) leaving between the two acts of Gazette notification and local publication a time lag of however short and of brief duration, the initiatory action of Gazette notification under Section 4 (1) of the Act should fail and be struck down. On the other hand, it is argued by the State that simultaneous local publication is not a requirement of the Act and, therefore, cannot be a ground to invalidate the initiatory State action. This is the problem of S.L.P which is specifically mentioned in their order of reference made by Ramachandra Rao, J. and Lakshminarayana Reddy, J on 19-7-82 in Writ Petition Nos. 5644, 5722, 5563 and 5538/81 and prominently argued in this batch of writ petitions.

The limits of dispensing power:—

11. In almost all these cases the land acquisition authorities invoked the provisions of Section 17(4) of the Act and dispensed with holding of inquiries contemplated to be held by Section 5-A of the Act. Section 5-A of the Act confers on a ‘person interested in any land’ proposed to be acquired by the Gazette notification made under Section 4 (1) of the Act an invaluable right to protest and object to the proposed acquisition by merely writing to the Collector within a period of thirty days from the date of Gazette notification. If such a person exercises his basic right of protest and makes his written objections within the statutorily fixed period of thirty days, section 5-A(2) of the Act mandates the Collector not only to hear the objector or his pleader in person but also to consider his objections and to recommend and to report to the State Government on those objections together with his own opinion. The petitioners argued that under the Act this is their only right to object to the Page: 244acqnisition by compulsion and that such a right of theirs under Section 5-A of the Act should not be taken away by the executive under Section I7 (4) of the Act except on the basis of an honest and banafide opinion formed by application of mind of the authorities to the relevant objective facts that would reasonably warrant dispensing with holding of a statutory_inquiry in a particular case. The upturn of this argument of the petitioners is to say that mechanical dispensation of Section 5-A inquiries would be a bad exercise of discretion vested in the executive calling upon this court to exercise its ancient power and duty to judicially scrutiniz the exercise of executive discretion in these cases relating to dispensing with Section 5-A inquiry This is the problem of judicial scrutiny of executive discretion dispensing with Section 5-A inquiry under Section 17(4) of the Act. But this traditional problem, so familiar to administrative lawyers, should not have normally presented any difficulties for its resolution, but for the fact that it comes to wear varying hues and colours in this batch of cases under the powerful glare of judicial dicta made from time to time by various Benches of this court, some times even openly suggesting that where the purpose of acquisition happens to be the laudable object of providing house sites for Harijans, judicial scrutiny of the executive discretion dispensing with Section 5-A inquiry should either be totally given up or at all events should only be sparse and minimal. Petitioners contra argued that even assuming that there is urgency in providing house-sites to Harijans, courts should still consider whether the urgency is so great and grave as not to permit the holding up of acquisition by a month's delay of Section 5-A inquiry. The petitioners therefore challenged the correctness of suggestions made in some of the decisions of our court and adopted by the Government Pleader before us as his argument equating existence of urgency with existence of justification to dispense with Section 5-A inquiry. The petitioners argued that such suggestion amounts to making of a suggestion to the courts to surrender their judicial responsibility of supervision to oversee the exercise of executive discretion. They called it even as a suggestion for abdication of judicial responsibility.

12. The repurcussions of terminatory failure to take possession on initiatory action:

13. A facet of this problem that gave rise to a further question is whether the terminatory failure of the State to take immediate possession of the land proposed to be acquired under Section 4(1) of the Act by dispensing with Section 5-A inquiry would result in invalidation of the acquisition itself. This is the question which is specifically mentioned by Madhava Reddy, J. (as he then was) and Jeevan Reddy, J. in their order of reference made in Writ Petition Nos. 1449/78, 2262/78, 2383/78, 3401/78 and 3011/78 on 19-3-1979.

14. Impact of preparatory delay and the legality of dispensing with inquiry:—

15. Another facet of the same question is whether the preparatory time taken by the revenue authorities at the lower rungs of administration in deciding upon the particular land to be acqired and in estimating its Page: 245probable costs ect. leading to the taking of the initiatory action under Section 4 (1) of the Act should be counted to find out whether there is justification to dispense with Section 5-A inquiry. The argument of the petitioners is that the court should hold that the longer the time taken to complete the preparatory work, the lesser should be the justification to dispense with section 5-A inquiry. On the other hand, the State said that neither the subsequent failure to take immediate possession nor the long time taken preparatory for acquisition can have any bearing on the question of dispensing with Section 5-A inquiries.

Administrative Instructions:—

16. The third question that is raised in these cases is whether acting contrary to the administrative instructions issued by the State Government on the subject of acquisitions would invalidate the acquisitions. For example, the State Government had directed in Memo No. 1287 dated 31-3-1974 as amended by Memo No. 5814.Cl/77-3 dated 29-9-77 that “the lands belonging to poor persons with meagre land holdings (not more than 2 to acres) should not be acquired unless otherwise inevitable for the purposes of maintaining proximity and vicinity to the main village and contiguity of the lands’. Similarly, in Memo No. 7342.C1/76-4 dated 27-12-1976 the State Government directed the Collectors “to ensure that the lands belonging to Harijans are not acquired for the purpose of providing house-sites, except where it becomes otherwise inevitable” In Memo No. 2600.CI/78-1 dt. 12-6-78 the Government directed that the “lands belonging to small farmers, marginal farmers, Scheduled Castes and Scheduled Tribes should not be acquired unless there are no other alternative suitable lands available for the purpose of house-sites. If, however, the lands of such persons have to be acquired, alternative lands may be given to them in exchange from the lands available at the disposal of the Government”. Similarly in G.O Ms. No. 472 Revenue dated 22-2-1938, the Government directed that “when land is required for providing house-sites for members of the Scheduled Castes or other labouring classes or of a co-operative society, the names of the members, to whom it is intended to assign the land when acquired should be given in the notice issued under Section 4 (1) and 5-A of the Act together with the extents proposed to be given to each. Information as to whether this instruction has been complied with should be furnished when submitting the draft declaration under section 6”. The petitioners argued that in a number of cases, action has been taken by the land acquisition authorities contrary to the above executive instructions and such actions should be declared as invalid. On the other hand, the State said that non-compliance with the executive instructions would not invalidate the acquisitions. This is the problem of enforceablity of the executive instructions.

Minor questions:—

17. In addition to the above major questions, there are a few minor questions which were raised and argued, but making reference to which, I Page: 246presently omit because they would be referred to and dealt with in detail in a later part of this judgment.

18. The peculiar legal nature of eminent domain and its implications:—

19. The Land Acquisition Act proceeds on the assumption that private lands can be acquired for public purposes. The State power to acquire private lands for public purposes by compulsion of law is sought to be regulated by prescribing certain procedure which is considered by the legislature to be just. It appears to me that the peculiar legal nature of this legal power of the State conveniently, though not accurately, referred to herein under as the power of eminent domain is not sufficiently grasped and appreciated. The power of eminent domain differs fundamentally from the other two great powers of social control exercised by the State viz. the power of taxation and the police power. The difference between the power of eminent domain and the other two great powers of the State consists exclusively in the nature of the selective fall-out of the exercise of the power of eminent domain. The incidence of exercise of the State power in the case of taxation and the police power is uni form and equal between the subjects whereas the exercise of the power of eminentdomain takes away from a particular individual, subjected to the exercise of that power something more than his d ie??? from him as his lawful share for the support of the State. In other words, the exercise of eminent domain is inherently unjust and distribs the balance of equal distribution of burdens by throwing them on some proportionately greater burden. It also operates in effect against a few named individuals. Eminent domain in its effects though not in its name, thus operates generally as adhominem legislation. Inherently therefore, the exercise of State power of eminent domain causes individual injustice. This is so because while the exercise of power of taxation as well as the police power impinge generally upon the State subjects with a certain degree of uniformity of impact without throwing unequal burdens on any particular named individual, the exercise of eminent domain operates harshly and unequally by exacting special sacrifices from those unfortunate slected few. Injustice is therefore writ large on the face of the law of eminent domain and is inherent in the invidious nature of its ad hoc exercise. The celebrated commentator, Bernard Schwartz, in his ‘Rights of Property’ noticed this situation of inherent injustice in the exercise of eminent domain in the following words:

“There is, nevertheless, a vital difference between taxation and eminent domain in this respect. It is true that taxation docs take private property for the public use. But it does so solely under general rules of apportionment and uniformity so that each individual contributes only his fair share to the expense of Government. The public burden of taxation is, in other words, assumed by the citizen in common with the community at large. Where eminent domain is involved, on the other hand, the individual is compelled to surrender to the public something beyond his due share for the benefit of the community. In such a case, Page: 247the fundamental principle of an equal distributtion among the citizens of the costs of government has been breached at the expense of the individual whose property has been taken”. (Para 328 page 256)

20. The following observations of Rottschaefer, in his Constitutional Law, Page 694, highlight a slightly different facet of this ugly face of the law of eminent domain:—

“The power of eminent domain is but one of those by an exercise of which government may take private property for its own purposes. The others are its regul tory power and its taxing power. An exercise of a government's regulatory powers generally does not involve an actual appropriation of private property by it, although it may at times involve that result. There is no constitutional principle requiring it to pay the owner even though the government's act in fact takes or destroys his property in such cases. The levy and collection of a tax, transfer property from the taxpayer to the government, but there is no constitutional requirement that it make specific compensation to the taxpayer therefor……It is a constitutional requirement under our system that government makes fair and specific compensation for any private property taken by an exercise of its power of eminent domain………”

21. It must, therefore, be admitted that to the just eye of law, the statute of land acquisition appears and should appear to be harsh, unequal and unjust. This must particularly be so in a country like ours where millions of our country men steeped in poverty and ignorance depend upon cultivation of lands as their only means of livelihood. In other words, the power of eminent domain produces results which are basically incompatible with the principle of equality which our Supreme Court described as the bedrock of our Constitution. (See Chandrachud, J, in the Election case AIR 1975 SC 2299) It is unequal in its operation, harsh in its impact and unjust in its effects, because it operates in its effect as an ad hominem legislation exacting greater sacrifices for the purposes of the State from one rather than from the other. It is for this reason that the Anglo-Saxon law recognises the act of compulsory taking of private land by the State as causing a great legal injury to the owner of that land and admits the right of the owner to be compensated for the damage. It is for this reason the power of eminent domain is not exercisable in Anglo-Saxon jurisprudence except on condition of payment of compensation. Compensation can only be ordered to be paid by the State for damages done by it. It follows, therefore, that the law itself recognises that the exercise of power of eminent domain causes legal damage to the owner of the property. The significance of this legal recognition of the right of the owner of property to be compensated for the loss of property he has suffered from the exercise of State power should not be lost sight of in interpreting and enforcing the Land Acquisition Act. No other exercise of State power, either the police power or the taxation power, is Page: 248similarly treated by law as causing legal injury to the victim. It, therefore, follows that the provisions of the Land Acquisition Act providing for the procedure to be followed by the State in acquiring private lands should strictly be adhered to

22. Yet, it must be admitted that it is imperative for the purpose of social control that the state should possess this drastic power of eminent domain.In this tangled legal situation of larceny by the state the courts should, arousing their social conscience for justice, strive hard to lessen the impact of in justice inherent in the exercise of the power of eminent domain so as to keep the use of this power within the tolerable limits of equality before law and equal protection of laws. Law, therefore, accepting the power of eminent domain as necessary for the fulfilment of the great social purposes of the State, should attempt to cushion the unjust impact of its exercise by insisting upon the strict observance of the procedure the relevant statute lays down treating the procedural limitations as conditions precedent for the exercise of the power of eminent domain. It must be taken that the legislature itself, by providing for a particular procedure, intended to lessen the hardships that would inevitably be caused to the particular individuals subjected to the exercise of power of eminent domain. It is true that no decided case cited before us specifically refers to the unjust facets of compulsory acquisition and the peculiar legal nature of the acquisition made. But, yet, I am clearly of the opinion that the passages which I have quoted above from Bernard Schwartz and Rottscharffer and the basic legal principles I have referred to above correctly state the legal characteries of the power of eminent domain. As the above quotation from Rottscharffer shows there is no other exercise of compulsive State power which recognises its exercise as causing legal injury and requires the State to pay damages for exercise of power. In fact, it is one of the basic tenets of the Anglo-Saxon law of interpretation that the legislature would not be taken to have intended to take private property by eminent domain except by payment of compensation. The very concept of compensation shows that the law recognizes that the exercise of the power of eminent domain causes a legal injuiry to the owner. I am emphasizing these aspects by repetition because I am convinced that a general failure to take note of these peculiar features of the power of eminent domain has been mainly responsible for the failure of some decisions to call for the strictest observance of the procedure. Such decisions to which reference will be made later are not only incorrect in principle but are also directly opposed to the law laid down by the Supreme Court. The Supreme Court treated the procedural infractions in land acquisition cases not as ignoble trivialities but as serious violations of conditions precedent for the exercise of the power of eminent domain and, on that basis, invalidated the land acquisitions in several instances that came before it from time to time. In other words, what would have possibly been condoned by the Supreme Court in similar cases arising under other statutes as amouting to no more than inconsequential procedural infractions, was treated by the Supreme Court in those cases of land acquisition as jurisdictional Page: 249error. Thus the procedural limitations are treated in the land acquisition cases as conditions precedent for the exercise of the power of eminent domain. This is the direct corollary of treating the power of eminent domain as inherently unjust. In other words, the exercise of power of eminent domain is recognized as inherently incompatible with the principle of equality that is basic to our Constitution. Such serious results can only be brought about by the legislature by an appropriate scheme devised by it permitting the exercise of power but forbidding gross arbitrariness. Courts should not ignore the legislative scheme. The Supreme Court has therefore, refused to uphold any action of the land acquisition authorities except to the extent that such acts of acquisition by compulsion was taken strictly in accordance with the provisions of the Land Acquisition Act Sri Mandir Sita Ramji v. Gorernor of Delhi 1975 (1) SCR 597 was a case where the LandAcquisition Collector neither heard the objector nor considered his objections filed under Section 5-A (1) of the Land Acquisition Act nor made his recommendations on those objections to the Government. The Delhi Administration, without giving any hearing to the objector, published the necessary notification under Section 6 (1) of the Act declaring that the land was needed for a public purpose. When the objector challenged the validity of Section 6 notification so published, a learned single Judge of the Delhi High Court allowed the writ petition. In appeal, the Appellate Bench opining that the objector should have been given a hearing, directed the Delhi Administration to give such a hearing to the objector pending the disposal of the writ appeal. The Delhi Administration, after according a hearing to the objector, over-ruled the objections Following upon that the Appellate Bench of the Delhi High Court dismissed the writ petition filed by the objector on the ground that no prejudice, in the circumstances of the case, was caused to the objector by the authorities failure to comply with the requirements, of Section 5-A (1) of the Land Acquisition Act. In a further appeal filed by the objector, Mathew, J. writing for the Supreme Court Bench and treating the whole question as one of jurisdiction and not one of prejudice, allowed the appeal. The learned Judge clearly observed at page 600:

“The failure of the Land Acquisition Officer to inquire into the objection after giving the appellant an opportunity of being heard would show that he declined to excercise his jurisdiction under the section. As we said, the fact that the ultimate decision has to be made by the State Government did not relieve the Collector from his statutory duty to enquire into the objection and make the recommendation. We see no reason way the Division Bench should have departed from the procedure prescribed by the statute. The observance of the procedure laid down by statute before depriving a person of his property is necessary to generate the feeling that rule of law prevails in this country. When a procedure is prescribed by the legislature, Page: 250it is not for the court to substitute a different one according to its nation of justice. When the legislature has spoken, the Judges cannot afford to be wiser.”

23. In an earlier decision in Khubchand v. State of Rajasthan 1967 (1) SCR 120 treating failure to cause public notice of the substance of the Gazette notification to be given at convenient place in the locality under Section 4(1) of the Land Acquisition Act (that is, failure to make local publication) as amounting to a jurisdictional failure, Subbarao, J. (as he than was) calling the latter requirement of Section 4(1) of the Act to cause local publication as mandatory, invalidated the entire acquisition proceedings. In State of Madhya Pradesh v. Vishnu Prasad AIR 1966 SC 159 the question that arose was whether it was open for the Government to issue successive notifications under Section 6 of the Land Acquisition Act as it stood then with respect to the same land comprised within one notification under Section 4(1) of that Act. Rejecting the contention of the Government claiming to have power to issue as many notifications as it deemed fit under Section 6(1) of the Act, and observing that Sections 4, 5-A and 6 of the Land Acquisition Act are integrally connected permitting only one notification to be made under Section 6 (1) of the Act, the Supreme Court observed:

“Two things are plain when we come to consider the construction of Sections 4, 5-A and 6. The first is that the Act provides for acquisition of land of persons without their consent, and though compensation is paid for such acqisition, the fact however remains that land is acquired without the consent of the owner there of and that is a circumstance which must be borne in mind when we come to consider the question raised before us. In such a case the provisions of the statute must be strictly construed as it deprives a person of his land without his consent.”

24. Krishna Iyer, J. in State of Punjab v. Gur Dayal Singh, AIR 1980 SC 319 highlighted the seriousness involved in State compalsorily taking the property of a man. From this, it follows that the courts should not light-heartedly uphold the land acquisition proceedings unless those proceedings are taken in strict compliance with the letter of the law.

25. It should now be clear to us that acquision of private lands for public purposes by the use of compulsion of law should not be permitted by courts except in strict compliance with the procedure laid down by the Land Acquisition Act. Law does not make any one any more responsible for the upkeep of the State than any other. We should also not forget the fact that the Land Acquisition Act lays down certain procedure controlling the use of the exercise of the power of eminent domain in order to lessen the impact of that injustice. By merely upholding the exercise of Page: 251power of eminent domain while ignoring the limitations imposed by the statute on such exercise, courts will not be promoting justice, but would only be adding to injustice. Court cannot add to injustice inherent in a piece of law even though they may not be able to diminish it. Unfortunately however there are several court decisions that have not called for the strict observance of the provisions of the Land Acquisition Act. This unsatisfactory state of law is in no m an degree traceable to an admixture of private law notions with public law concepts. It is clear to me that the above-quoted decisions of’ the Supreme Court do make the application of private law notion of prejudice wholly irrelevant and inapplicable to the interpretation of Land Acquisition Act because injustice “is inbuilt into the Land Acquisition Act. The above cases show that in one case for infraction of procedure laid down by Section 5-A (2) of the Act, in another case and for a similar infraction of procedure laid down by Section 17(4) of the Act in a third case, the Supreme Court had invalidated the land acquisition in those cases without even considering the question of prejudice suffered by any particular party, These decisions of the Supreme Courts proceded on the theory that there can be no greater prejudice done to a man than to deprive him of his life, liberty and property, otherwise than in accordance with the procedure sanctioned by law. Fleid, J. said in re BONNER (151 U.S 242,259,

“The laws of our country take care or should take care, that not the weight of a judge's finger shall fall upon any one except as specifically authorized.”

26. This is particularly so in the case of land acquisitions where the State burdens are thrown more on particular individuals. The above-quoted decisions are rooted in the best traditions of our law that abhor the State taking away one's right to life, liberty and property otherwise than in strict compliance with the statutory requirements the law itself recognizes and lays down as conditions precedent for the exercise of such drastic powers. The danger to this well-settled principle of law arises not so much from any frontal challenge but by the sneaking introduction of private law concepts into the domain of public law. In the area of private law traditionally governed by the Civil Procedure Code, procedure may bagreably to jurisprudence be called a mere hand-maid of law. But at all costs, we should resist and repel the attempts of civil procedurist to infect with his private law notion of procedure the area of public law dealing with the powers of the State to take a man's life, liberty, and property where the procedure is almost the law itself. Justice Frankfurter truly said in NcNABB v. U.S (318 U.S 332, 347) that “the history of liberly has largely been the history of observance of prodcedural safeguards”. It follows that in these land acquisition cases we should call for the strictest of observance of the procedure laid down by the statute eschewing the private law notions of subordination of procedure and its offshoot, the notion of prejudice.

27. The Directive principles and the 44th Constitutional Amendment:—

28. But Sri Ramaswamy, the learned Counsel for the State argued Page: 252that the right to property is no longer a fundamental right of the Constitution and that the decisions of the courts should be made agreeably to the Directive principles in general and article 39 of the Constitution in particular upholding the land acquisitions made for the benefit of Harijans.

29. It must readily be admitted that nothing can be more agreeable to the constitution than doing something for the achievement of the great social, political, economic and educational objectives set up by the Directive Principles of the State Policy But at the same time, one should not forget that under our constitutional scheme, Directive Principles are not self-operative. They merely set up goals to be reached leaving the question of particular means to be adopted for reaching those goals to the decision ofe??? ordinary law. The ordinary law choosing the approprirte means can b cnacted??? by the legislature only subject to the constitutional limitations, including those imposed by the fundamental rights chapter. It is therefore not permissible for the courts to refuse to enforce, in the name of the Directive Principles of the State Policy, the limitations that ordinary law imposes on the use of the State Power for the achievement of the constitutional goals. For the administration of day-to-day justice ordinary laws are still indispesable. It follows that the ordinary law must be enforced by the courts following the ordinary canons of statutory interpretation. Refernce to the Directive Principles in this context cannot be of any particular help to the courts.

30. The other part of the argument based on deletion of property right as a fundamental right effected by the 44th Constitutional Amendment needs to be examined. But in order to dispel a widely prevalent misconception on the nature of property rights, it should be observed that the concept of property right in its modern legal sense is not something confined to the inter se relationship of man with nature as Austin defined it to mean. It is essentially an inter se relationship between man and man. In other words, the dichotomy the Austin jurisprudence draws between property rights and persona] rights is a false dichotomy. It is based on the fetish of property rights. All rights are essentially personal rights only. Property rights are no more than personal rights in property. In the ultimate analysis these rights in property delimit the powers a man might enjoy or duties he nay be obliged to discharge in a civil society. In Lynch v. Household Finance Corp. 1 Justice Steward observed:

“The dichotomy between personal liberties and property rights is a false one. Property does not have rights. People have rights In fact, a fundamental inter-dependence exists between the personal right to liberty and the personal right in property. Neither could have meaning without the other……”

31. As Laurence H. Tribe says in his “America in Constitutional Law” at page 574,

“People who cannot buy bread cannot follow the suggestion that they eat cake; people bowed under the weight of poverty are unlikely to stand up for their constitutional rights.”

32. It is, therefore, clear that people without property cannot have freedom. Our Constitutional claim to guarantee freedom and liberty to the individual would be defeated and would become empty if rights in property are destroyed in toto. Then individual slavery would take the place of individual freedom and liberty. Property as a means to exploit our inner talents and to enjoy our human faculties could not have been intended by our Constitution to be completely destroyed. The property rights which the Directive Principles of State Policy intends to regulate are those property rights which a citizen may use as his power over other citizens and thus destroy others freedom, The true and real aim of the Directive Principles is to regulate “the capacity of an individual or group of individuals to modify the conduct of other individual or group by the use of former's rights to property’ (R.H Tawney's “Equality”) and not to destroy all rights of all people in property. In this sense the rights in property after the 44th Consitutinal. Amendment now seek constitutional shelter and protection in Article 21 of. the Constitution. Personal liberty guaranted in Article 21 of the Constitution cannot be enjoyed without minimal rights in property. The 44th Constitutional Amendment made social control of rights in property easier but did not do away with the rights in property altogether. Today Article 20 of the Constitution should therefore comprehend rights in property also. I, therefore, find it difficult to say on the whole that after the 44th Constitutional Amendment the right in property has altogether vanished, We are concerned in these cases mostly with small agricultural holdings, the cultivation of which gives almost the entire meaning to their very existence to many of the owners. I do not therefore think it possible to ignore their right to hold these small extents of property by allowing the power of eminent domain to be used recklessly or excessively.

33. The first question:—The problem of simultancous publication (S.L.P):—

34. The problem of simultaneous local publication is a part of the problem of local publication under the latter part of Section 4 (1) of the Act along with the Gazette notification under the earlier part of that section. In fact it is local publication itself. The Supreme Court had held that requirement to make local publication is as mandatory as making of the Gazette publication. The question is when it should be made. The petitioners argued mainly on the basis of two judgments of the Supreme Court, viz. State of Mysore v. Abdul Razab AIR 1973 SC 2361 Sahibi Narinderjit Singh v. The State of Uttar Prades AIR 1973 SC 552 and a judgment of mine in Mohd Khaja v. State 1982 (2) ALT 138 that local publication under Section 4 (1) of the Act should be simultaneous with the Gazette notification under the earlier part of the sam- section. On the other hand, the State contended that there is no such legal Page: 254obligation to make simultaneous publication, placing its reliance mainly on Vanamulu v. Government of Andhra Pradesh 1977 (1) An WR 289 Munna Ramanna v. The Collector West Gcdavary 1977 ALT 556 an unreported Full Bench decision in Salima v. Government of A.P 1977 (2) APLJ 24 (Writ Petition No. 5169/77 dated 26-9-1978) and B.C Sangh v. District Collector 1982 (1) An WR 223. I am of the clear view that both on principle and on the high authority of the Supreme Court, the argument of the petitioners should prevail and this Court should hold that under the Land Acquisition Act, Local publication should be simultaneous with the Gazette notification.

35. Land Acquisition Act, as I have already noted at the threshold of this judgment, is an Act that lays down the procedure for the acquisition of private lands for public purposes. The initiatory action contemplated to be taken under the Act is the publication of the gazette notification. The gazette notification would authoritatively proclaim the intention of the State to acquire a particular piece of private land and would empower the State officers to enter upon the private land. But the Gazette notification is not a widely read document and is almost unknown in the villages. The Land Acquisition Act, therefore, does not treat the Gazette notification either as sufficient to inform the land owners that the State Officers might enter upon their lands or to inform the land owners that the land is proposed to be acquired. The latter part of Section 4 (1), therefore, mandates additionally that the substance of the gazette notification should be locally published. Then alone the State Officers are entitled to enter upon the land and thus alone the land owner is informed of the proposed acquisition. The local publication is not only intended to enable the State officers to exercise their powers under Section 4 (2) but it is also devised to inform the land owners about the proposal to acquire their lands. The purpose behind the statute requiring to inform the land owner of the gazette notification through local publication is broadly two-fold. It is firstly to enable the landholders to exercise their statutory right to object under Section 5-A. Under Sec. 5-A, any person interested in any land which has been notified under Section 4 (1) is given a right to object to the acquisition within thirty days after the issue of the notification. This right to object can be exercised by the landlord only on the basis of his knowledge about the gazette notification made by the State under Section 4 (1). The legislature, being conscious of the fact that such information about the Gazette notification cannot ordinarily be gained by the land owner from the gazette notification alone which is not easily accessiqle to the villagers, requires the substance of the gazette notification to be published at convenient places in the locally so that the land holder may inform himself from the local publication that his land is proposed to be acquired and may, if he so chooses, exercise his right of objection within thirty days from the date of gazette notification. It must be noted that while his right of objection does not endure more Page: 255than 30 day from gazette notification, imparting of knowledge about gazette notification is left by the Act to local publication. In this situation, if the local publication is not made simultaneously with the gazette notification, the statutory right of the land owner to make objactions under Section 5-A will either be totally lost or partially cut into. It is from this implication of Section 5-A that the theory of simultaneous publication is built up and becomes incontrovertible. The rejection of the argument for simultaneous publication would clearly amount to rejection of the land owner's rights under Section 5-A of the Act.

36. But, there is even more crucial role the Act intends the simultaneous local publication to play in protecting the interests of the land owner in the matter of making additions to the land proposed to be acquired, without any knowledge about the proposed acquisition. Section 24 of the Act says that any improvements made on the land after the date of the publication of the notification under S. 4(1) shall not be entitled to be compensated. No owner in his senses would incur such wasteful expenditure if he knowns of the proposed acquisition. But, if the owner, being ignorant of the fact that notification under Sec. 4 (1) of the Act has already been made proposing to acquire his land, makes improvements to it, he would get no compensation for those improvements. The money he would spend on such improvements would be a total loss to him. He would thus be put to avoidable pecuniary loss. Prompt knowledge of the gazette notification alone can save him from such consequences. Once again, simultaneous publication becomes crucial in that context for preventing the land owner from suffering monetary loss under Sec. 24 on account of improvements that he might make in ignorance of Sec. 4 (1) gazette notification. As the statute treats, the knowledge of gazette notification would be inaccessible to the land owner except through the local publication and the knowledge of gazette notification is essential to the land owner for saving himself from wasteful expenditure under Section 24 of the Act, it becomes absolutely necessary that local publication should be made simultaneously with the gazette notification. Any time lag between the Gazette notification and the local publication might in conceivable eases spell economic ruin for the poor farmers. Any local publication made subsequent to gazette publication would not be sufficient to prevent the land owner from making the wasteful improvements earlier on the land. The statutory purpose of preventing such unjust results can only be achieved by simultaneous local publication.

37. Considering the purpose underlying the statutory requirement to make local publication, it appears to me that the conclusion is inescapable that on a plain and integral construction of Sections 4 (1), 5-A and 24, simultaneous local publication becomes unavoidable under the Land Acquisition Act. This is the view I have taken in Mohd. Khaja's case 1982 (2) ALT 138 following Page: 256the two decisions of the Supreme Court in Abdul Razack's case AIR 1973 SC 2361 and Narinderjit Singh's case. AIR 1973 SC 552 But I must mention that the number of cases of this Court that have taken a contrary view that simultaneous local publication is not the requirement of law, is a legion. These cases argued with some plausibility??? that local publication may not be regarded as so imperative to be made a must because section 5- A inquiry is capable of being dispensed with although local publication is always mandatory. But I should point with respect thr.t??? not even one of these cases considered the importance cf local publication from the point of view of the requirements of Sec. 24 of the Act. Of course, some of these cases held that simultaneous. local publication is imperative when Section 5 -A is not dispensed with because the cases agreed that when section 5 A inquiry is not dispmscJ??? with, simultaneous local publication alone can subserve the statutory purpose. Due it appears to me that these eases are contrary to the meaning of the Ac, as interpreted by the two Supreme Court decisions.

38. In Abdul Razack's case, Mysore Government published the gazette notification on under See. 4 (1) on August 17, 1961. But local publicaton was made on November 1, 1961. The respondent filed his objections on December 4, 1961 and those objections were in fact considered by the State Government before making Section 6 declaration. Yet, the question considered by the Supreme Court was whether acquisition proceedings were invalid for the reason of failure to make S.L.P The Supreme Court, in a short judgment, first found that the mandatory requirements of the Act are two-fold, namely (a) gazette notification, (b) local publication. Then it observed:

“The publication of the notice in the locality is a mandatory requirement. It has one important purpose behind it. In the absence of such publication the interested persons may not be able to file their objections about the acquisition proceedings and they will be deprived of the right of representation provided under Sec. 5-A which is a very valuable right.”

(Emphasis supplied)

39. Then, in the succeeding para of the judgment, their Lordships turned to the question of the time when local publication should be made. They considered the question whether any time is a good time for local publication. The Supreme Court said, ‘no’. It observed:—

“It is only when the notification is published in the official gazette and it is accompanied by or immediately followed by the public notice, that a person interested in the property proposed to be acquired can be regarded to have had notice of the acquisition.”

(Emphasis supplied).

40. Abdul Razack's case categorically ruled that the owner of the land shall be given notice of the proposed acquisition only through local publication Page: 257which should either accompany the Gazette notification or follow it immediately. This clear ruling of the Supreme Court judgment in Abdul Rajack's AIR 1973 SC 2361 case on local publication was reiterated by Narinderjit's AIR 1973 SC 552 case, where the Supreme Court invalidated acquisition of land for failure to make local publication although in that case Sec. 5-A inquiry was dispensed with. In the latter case, the Supreme Court, approvingly referring to Razack's case ruled:

“It lays down in unequivocal and clear terms that both things have to be done simultaneously……………in which the land is situated.”

41. Narinderjit Singh's case categorically laid down as Abdul Razack's case did earlier that both things under Section 4 (1) have to be done simultaneously.

42. in Rattan Singh v. State of Punjabi AIR 1976 Punjab & Haryana 279 a Full Beach of the Punjab High Court considered the effect of the above two judgments of the Supreme Court. The Punjab Full Bench ruled that simultaneous local publication is an imperative under the Act as interpreted by the above two judgments of the Supreme Court. The Full Bench observed:

“After giving my thoughtful consideration to the entire matter in the light of the observations made by their Lordships of the Supreme Court in the aforesaid two decisions, I find no escape from the conclusion that the publicity of the substance of the notification in the concerned locality has to be given simultaneously or at least immediately after the publication of the notification in the official gazette.

(Emphasis supplied)

43. The Full Bench also gave its own reasons why it considers simultaneous publication is necessary. It said:

“If the publication in the concerned locality is not made either simultaneously with or immediately after the publication in the official Gazette, then the reasonable period as provided under Section 5-A (1) for filing objections shall stand curtailed. Such could never be the intention of the Legielature………”

44. The Punjab Full Bench also held that the time of thirty days for filing objections undey Section 5-A(1) starts from the date of the publication of the notification in the Official Gazette and not from the date of publication of public notice of the substance of such notification at convenient place in the concerned locality. Similar is the view taken by the Madras High Court. In Nagammal v. State of Tamilnadu 1978 (1) MLJ 450 Koshal, J. had upheld the rule of simultaneous local publication and quashed the acquisition for Page: 258non-complicance with it, following the above two judgments of the Supreme Court. An Allahabad judgment examined the Abdul Razack's case from a different point of view. Daya Wati v. Collector, Saharanpur AIR 1975 All 202 referring to Abdul Razack's case, rejected the theory of prejudice as irrelevant for invalidating land acquisition for failure to make S.L.P

45. Now, both on principle and authority of the Supreme Court, it is clear that simultaneous local publication becomes an unavoidable legal imperative of the Land Acquisition Act. This conclusion gets even more fortified and strengthened when considerations relevent for Section 5-A of the Act taken into account by the Supreme Court arc added to by the more compelling considerations relevant for Section 24 Clause 7 of the Act which were not cited before the Supreme Court, but were mentioned in Md. Khaja's 1982 (2) ALT 138 case. Section 24 makes the simultaneous local publication more imperatively and absolutely indispensable as a means to safeguard a valuable and substantive right of the land owner to be saved from pecuniary loss than Section 5-A which makes the simultaneous local publication necessary merely to safeguard his interest in representation. The above quoted two decisions of the Supreme Court held that local publication is mandatory, because without such a publication being made the Land Acquisition Act cannot be put to operation. Clearly those cases considered the making of local publication as necessary for giving a jurisdictional start to the statutory proceedings under the Land Acquisition Act. Such an act which is essential for giving Jurisdictional start is regarded in law as mandatory (see CRAWFORD ‘Statutory Construction’ page 205). A duty to publish locally that may be performed at any time according to the reasonable convenience of the performer provided it is satisfactorily explainable some time later to a court, cannot, in our opinion, be called a mandatory duty imposed by a statute. A duty in law can be called mandatory only when a stasute imposes on the obligee the duty to discharge the obligation or perform the act with some degree of certainty, clarity and precision. If the very performance is left to the performer's convenience, it cannot be called mandatory. Such a duty, if at all is to be called a duty, is better called directory. A mandatory duty must not merely be certain to be performed but must also be performed at a certain point of time fixed. The reasonable time theory the cases devised as an alternative to S.L.P is a clear judicial engrafting to the statute and is bound to be rejected by law. Further, the Court devised alternative to the theory of simultaneous publication which is sometimes called publication within a reasonble time would be inadmissible and inconsistent with the mandatory nature of local publication. Above all, the inherent legal nature of the power of eminent domain as antiegalitarian and adhominem law would not permit the courts to introduce these additional uncertainities through the process of its interpretation. The two concepts of a reasonable delay in making local publication and unreasonable delay in making such publication assume that Page: 259delay starts from the date of the Gazette notification. After all the time concept of delay would be totally meaningless and completely unworkable without fixation of a starting point in time for the performance of the statutory act of local publication. We cannot fix any starting point for local publication other than that of the Gazette notification. In other words, even this theory of reasonable delay tacitly accepts that there is a duty imposed by Section 4 (1) to make local publication simultaneously. Once it is accepted that making S.L.P as part of Section 4 (1), S.L.P becomes mandatory with the rest of Section 4 (1) of the Act. As according to the judgments of the Suprme Court in NARINDERJIT'S AIR 1973 SC 552 case and ABDUL RAZACK'S AIR 1973 SC 2361 case and other cases of the Supreme Court such a duty under Section 4 (1) becomes mandatory it follows that duty to publish simultaneously also becomes mandatory even according to this alternative theory of a reasonable delay. Otherwise, it would be contrary to the mandatory nature of Section 4 (1) of the Act. Thus even under the theory of publication within a reasonable time, the duty to make S.L.P cannot be disputed. Such a clear rule of law is best to be obeyed. The duty to make simultaneous publication cannot be got over even on the ground of physical impracticability. In Daya Wati v. Collector, Sharanpur AIR 1975 All 204 K.N Singh, J., rejected this argument of physical impossibility. In para 10 of the judgment, this argument of phy- sical impossliity is rejected by the learned Judge in these words:

“The learned dvocate General urged that compliance of Section 4(1) of the Act by publication of the notice in the locality was physically impossible in the instant cases as the copy of the Gazette containing the notifications, dated 4th August, 1973 was not available to the Collector or the Land Acquisition Officer at Shaharanpur before 22nd August, 1973. The Gazette is published by the State Government and if the machinery of the Goverment did not move speedily and the Gazette notifications were not available to the Land Acquisition Officer or the Collector, Sah- aranpur, within the time to comply with the law, the State Government cannot take advantage of its own faults and defects in its machinery.”

46. After the above two pronouncements of the Supreme Court, the courts in the country excepting our HighCourt followed the rule of simultneous publication. Our High Court, however, ruled that Supreme Court did not lay down such a law. we think that our court decisions which have distinguished the decisions of the Supreme Court are not right in principle. Starting from the false premise of physical impossibilty, our Court decisions distinguished the two Supreme Court decisions. Our duty is to follow those judgments of the Supreme Court loyally and to hold that simultaneous local publication is a categorical imperative of the Act. In view of the very clear language of the Abdul Razack and Narinderjit cases, no other coarse of Page: 260action could have been attempted or adopted by our courts. The final authority to decide the meaning of a statutory provision is not given to a High Court. That power is given by the Constitution only to the Supreme Court. It is the responsbility of the Supreme Court to lay down the law and ours is only to follow it religiously. I, therefore, do not think it permissible for us to take a view contrary to the one taken by the Supreme Court,

The trilogy of cases

47. We have earlier noticed that following Abdul Razack's case and Narinderjit, case, the Full Bench of the Punjab High Court in Rattan Singh's case had construed the Land Acquisition Act as requiring simultaneous local publication to be made. And similarly, Koshal J. in Nagammal v. State of Tamilnadu following the above two decisions of the Supreme Court and the Punjab Full Bench case construed the Land Acquisition Act as requiring simultaneous local publication to be made. In our opinion, these judgments of the Punjab High Court and the Tamilnadu High Court have correctly understood the rule in the two decisions of the Supreme Court. We venture to believe that Abdul Razack's case and its companion case in Narinderjit Singh, are not capable of being legally understood in any other way. And what is even more, in principle also we think these judgments have laid down the correct law. It is not without significance that no decision of any High Court excepting a few decisions of our High Court were brought to our notice which interpreted the two above judgments of the Supreme Court as not mandatorily requiring simultaneous local publication to be made The reason for this near unanimity only broken by a few of oar decisions appears to us to be that it is not easy to understand the two judgments of the Supreme Court as not laying simultaneous local publication as a rule of Section 4 (1) of the Act. However, in a trilogy of case our Court took a differing path. For the first time in T. Vanamulu v. Government of Andhra Pradesh Gangadhara Rao, J. took the view that simultaneous local publication is not required by the Land Land Acquisition Act and such a rule was not laid down by the Supreme Court and that it is also physically impossible to comply with. He noticed both the judgments of the Supreme Court nough??? not the Full Bench judgment of the Punjab High Court, but held them as not requiring simultaneous local publication: This decision in Vanamulu's case was followed by a Bench decision of this Court in Ramanna v. Collector which in its turn was approved by a later decision of a Full Bench of this Court in Salima's case Thus to-day Vanamalu's case constitutes the foundation for the view that no simultaneous local publication is required under the Land Acquition Act even by the Supreme Court. It therefore becomes necessary for us to examine the Vanamulu decision somewhat rather closely. In Vanamulu‘s case the acquisition of land was for providing house sites for Harijans. For that laudable purpose the lands of other poor Harijans owning very small extents of land were acquired. That heartless acquisition was questioned on two grounds. Firstly the acquisition was questioned on the ground that the acquisition having the effect of depriving the petitioners of their means of livelihood went against certain Government instructions which Page: 261understandly required of the acquisition authorities not to acquire lands from persons whose means of livelihood would be affected thereby. Secondly the acquisition was also questioned on the ground that the failure to make simultaneous local publication in that case legally invalidated the acquisition as being contrary to the requirements of the Act as interpreted by the afore mentioned two judgments of the Supreme Court. But both the contentions urged by the petitioners in Vanamulu's case were negatived. As we are concerned here and now with the second question we will examine that question in depth postponing the consideration of the first point to a later part of this judgment.

Vanamulu Case:

48. In Vanamalu's case, Section 5-A enquiry had been dispensed with. But according to the principle laid down by the Supreme Court in the above Narinderajit's case this could not have made any difference whatsoever for the legal requirement to make simultaneous local publication. The Narinderjit's case is a case directly on the point. There the Supreme Court approved Abdul Razack case and invalidated acquisitions on the ground that there was no local publicalion. While doing so Narinderjit Singh case made its own observation requring S.L.P in addition to approving the Abdul Razak formula, the local publication should accompany or immediately follow after the Gazette Notification. Narinderjit shows beyond the possibility of any doubt that simultaneous local publication is always a legal imperative. In Narinderjit's case also, Section 5-A enquiry was dispensed with. Notwithstanding that fact, the Supreme Court ruled that local publication must be made and that such local publication should be made simultaneously with the Gazette Notification. Narinderjit's case drew support for this proposition from its companion decision in Abdul Razack's case decided earlier by the Supreme Court. Yet, Vanamulu's case openly scuttled those observations made by the Supreme Court on the ground that the ratio of Narinderjit is confined to laying down the mandatory nature of Section 4(1). Taking rather pragmatic view of the matter Vanamalu observed that when 5-A enquiry was dispensed with, “even if there is some delay”, in making local publication, “it does not matter”. With respect, we say that it matters a good deal for law when once the Supreme Court says that simultaneous local publication is a necessity even in such a situation. Vanamulu's case has directly gone contrary to the ruling in Narinderjit's case which interpreted Section 4 (1) as not only as mandatory but also as requiring simultaneous local publication even when section 5-A enquiry was dispensed with. In our opinion, Vanamulu went to the extreme by refusing to recognize those observations requiring S.L.P as constituting part of a body of the ratio of Narinderjit. We must observe that this is a serious weakness in Vanamulu's case. This serious shortcoming of Vanamulu's case is firstly due to a failure to appreciate correctly the decision in Narinderiit's case and Abdul Razak's case and secondly due to the failure to notice the purpose behind the rule requiring local publication to be made even where section 5-A enquiry was dispensed with and thirdly due to Page: 262failure to examine all the relevant provisions of the Land Acquisition Act and in particular section 24 of the Act. The underlying purpose behind requiring local publication to be made even where section 5-A enquiry was dispensed with, was put by Narinderjit's case, on a theoretical basis. Narinderjit's case argued that local publication which is required to be made by Section 4 (1) of the Act, cannot be construed as being mandatory where section 5-A enquiry was not dispensed with and as directory where it was dispensed with because in both cases the language of Section 4 (1) which requires local publication to be made remains constant and same. It follows that content of Section 4 (1) remains the same and if S.L.P is required when 5-A enquiry was not dispensed with so must be the case even when such an enquiry was dispensed with. But in our view, the reason why law requires simultaneous local publication to be made even in a case where section 5-A enquiry was dispensed with is substantially parctial. Even where section 5-A enquiry was dispensed with and as a result the practical utility that flows from making simultaneous local publication which is to enable the land owner to make his objections within thirty-days is wiped out the tremendous practical utility that flows from making such a local publication in protecting the land owner's rights under section 24 of the Act by operating as a warning to the land-owner not to make improvements would still remain undiminished. This important aspect of the case and this statutory purpose behind S.L.P had not been adverted to by the learned Judge. Gangadhara Rao, J., would not have observed that delay in making local publication would not matter in a case where section 5-A enquiry was dispensed with if his attention had been drawn to section 24. In principle also Narinderjit's case ruled the contents of Section 4 (1) remain constant. Vanvmulu's case did not show, in our opinion, sufficient awareness of either the theoretical or practical aspects of the Act. He neither noticed the theoretical importance behind the to make local publication in both the situations nor did he consider the practical aspect of the matter from the point of view of section 24 of the Act. The learned Judge, at page 251 of the report (para-10) noticed the argument of the petitioners in support of the simultaneous local publication based on the above two judgments of the Supreme Court in these words: “Strong emphasis” is laid on the words, “that both things have to be simultaneously done under Section 4 (1).” But having noted the strong argument advanced by the petitioners, the learned Judge rebutted that argument by these following observations:

“On the facts of that case and in the context in which that expression is used, I am not prepared to hold that the Supreme Court had meant to lay down as an absolute rule that both the publications should be made simultaneously in all cases. In the nature of things, it is absolutely impossible to do both the things simultaneously.”

49. The meaning of these observations made by the learned Judge is not clear to us. They do not help us to identify the peculiarity of the facts or context in Narinderjit Singh case. Further how a particular meaning ascribed to Section 4 (1) of the Land Acquisition Act by the Supreme Court case changes on the basis of the peculiarity of facts or contcxt in a case is not easy to appreciate. The learned Judge was undoubtedly saying that in Narinderjit’f case the Supreme Court required that simultaneous local Publication should be made. But he refused to give statutory universality to those observations as he thinks that those observations were made be-cause of some peculiarity in the facts of that case and in the particularity in the context of that case. The effect of these observation is to deny universality to the particular meaninig ascribed by that Supreme Court to Section 4(1) of the Act and to hold that the Supreme Court has not laid down a generally applicable rule regarding simultaneos local publication under the Act The learned Judge had never shown the special nature of the facts in Narinderjit's case and the peculiar context of the observations that would justify him to deny universal application to a principle of law laid down by the Supreme Court. But without showing the so-called peculiarity of the facts in Narinderiit's case or the particularity of the cntext the learned Judge denied the universality of the theory of simultaneous local publication propounded by the Supreme Court in Narinderjit's case. In the absence of such a showing by the learned Judge have to necessarily hold that the refusal to give effect to those observations cannot be justified even on the basis of facts or context in the case. We therefore hold that the attempt made by Gangadhara Rao, J. to deny the statutory generality to the meaning of Section 4 (1) of the Act requiring making simultaneous local pubication is not correct.

50. Gangadhara Rao, J. did not rule out the applicability of the cleer obrervations of the S.C made in Abdul Razack's case requiring local publication to accompany or to immediately follow the Gazette notification on the basis of any peculiarity of facts in that case or context of that case as he did in the case of Narinderjit's case. On the other hand he held that those observations in Abdul Razack's case requiring S.L.P to be made would apply to a case where section 5-A enquiry was not dispensed with. It is thus clea??? that Gangadhararao noticed in Vanmulu's case that the Supreme Court required simultaneous local publication to be made under Section 4(1) of the Act at least where section 5-A enquiry was dispensed with. If S.L.P is thus a part of Section 4 (1) it continues to be so even when 5-A was dispensed with Accpting that premises it should have been held that there should be simultaneous local publication in both cases under section 4 (I) of the Act. Narinderiit’ case is an unmistakably clear and strong authority for the proposition that requirement to make simultaneous local publication under Section 4 (1) of the Act does not turn upon the difference between dispensing with section 5-A or not dispensing with section 5-A. That difference does not alter the content of Section 4 (1) of the Act which remains constant. Abdul Razack's case was a case where Section 5-A enquiry was not dispensed with while Narideriit's case was a case where it was dispensed with. But both Abdul Page: 264Razack And Narinderjit cases required simultaneous local publication to be made. It follows that if simultaneous local publication is required in a situation where section 5-A enquiry is not dispensed which it should equally follow that even where section 5-A enquiry was so dispensed with simultaneous local publication should be made. We cannot, therefore agree with Gangadhararao, J. in limiting the applicability of the rule in Abdul Razack's case to a situation where section 5-A enquiry was not dispensed with. We hold that it is a universal requirement of Section 4 (1) of the Act.

The Physical Impossibility:

51. Through out the judgment of Gangadhararao J., in Vanamulu's case it is evident that the learned Judge was proceeding on the basis of a view that simultaneous local publication was a clear physical impossibility. We arc of the respectful opinion that this view is based on an erroneous assumption of law. The Supreme Court when it said that Section 4 (1) requires simultaneous local publication is obviously disregarding the fractions of a day. According to that ruling any local publication made at any hour or minutes or seconds later to the Gazette notification but before the end of that day on which the Gazette notification was made would be counted as simultaneously done with such Gazette notification. The fact that the local publication was made a few minutes or a few hours after the Gazette notification will not make the slightest difference to this. Even practically considered, local publication made, say even eleven hours after the Gaz.tte notification, would not affect the thirty-days statutory limit mentioned by section 5-A of the Act. It is for this reason that the Supreme Court ruled that local publcation should either accompany or should immediately follow the gezette notification. The Supreme Court cannot be taken to have asked for making the local publication to synchronise with the exact hour of the night when the gazette is printed or published. Such a view of simultaneous local publication is the result of taking into account even the fractions in a day which the Act discarded. It follows that simultaneouos local publication does not mean that local publication should be made at the exact hour or minute or second when the Gazette notification is made. All that it means is that local publication should be made within the period of that day. Thus considered, there could be no physical impossibility in making simultaneous local publication along with the Gazette notification. Further, this objection is more imaginary than real. There is no factual basis for this apprehension of the learned Judge either. The proposal to acquire lands generally emanates from the Revenue Divisional Officers or sometimes even from the Tashildars. By the time it comes to be approved by the State Government the lower rungs of the authorities would be fully aware of it. It would not, therefore, be impossible for them to make simultaneous local publication provided they are altered in time. In view of the Andhra Pradesh Amendment to the Land Acquisition Act, it is the Collector who has been given power to make the Gazette notification in cases of acquisition of house sites for Harijans. It Page: 265can never be said that the Collector, in those cases cannot get the substance of this Gazette notification published simultaneously in a particular place in the district. Above all, this question-physical impossibility-could not be considered as a live issue after the Supreme Court has ruled at least in Abdul Razack's case that simultaneous local publication is a requirement of the Act.

52. The above rule in Vanamalu case was considered and accepted by Ramanna v. Collector without however, adding to Vanamalu case anything substantially new. But more than Vanamalu case Ramanna rejected S.L.P on the ground of physical impossibility. While Vanamalu concerned S.L.P as being required under ordinary circumstances of 5-A enquiry Ramanna rejected S.L.P totally. Ramanna case elaborated Vannamalu case holding that giving effect to the rule of simultaneous local publication enunciated by the Supreme Court in Abdul Razack and Narinderjit case is physically impossible for the reason that the latter part of Section 4 (1) that requires the Collector to make the local publication of the Gazette notification can only be complied with after Gazette notification was published. The implication of this argument is that local publication can only follow the Gazette notification, but cannot be made to synchronize with the Gazette notification. The language support for this view is derived from the words, “such notification”, occurring in the latter part of Section 4 (1). Ramanna's case, by referring to how the Government machinery moves and works, said that by the time the Gazette notification is received by the far away Collector in the District from the State headquarters out of which the later should substract and publish, sometime must necessarily elapse and some time lag must necessarily occur making the simultaneous local publication impossible. Thus Ramanna's case went a step ahead of Vanamalu in rejecting the applicability of simultaneous local publication even to an acquisition where S. 5-A enquiry is not dispensed with.

53. There is a great deal in this reasoning of Ramanna with which we have already expressed our full disagreement while considering Vanamalus case. The fundamental error of Ramanna is to assume that Land Acquisition Act adopted even fractions of day as a unit. The Land Acquisition Act, however, adopted day only as a unit of measurement of time as is evident from sections, like S. 5-A and S. 24 of the Act. The Act, at least in those sections with which we are concerned, does not take fractions of a day into account. It is on that assumptive basis, Abdul Razack and Narinderjit cases ruled that local publication should be simultaneous with the Gazette notification. According to these rulings of the Supreme Court, any local publication made by a Collector under the latter part of Section 4 (1) of the Act even though made several hours after the Gazette notification, would be counted to have been made simultaneously with the Gazette Page: 266notification, provided the local publication is made within that day. Ramanna ought not to have made an assumption that runs contrary to the one made by the Supreme Court in Abdul Razack and Narinderjit cases. Further the whole reasoning of Vanmalu and Ramanna cases failed to take note of the central timely tenet of the Land Acquisition Act which, if noticed, would have prevented those cases from falling into the error of disregarding the two clear judgments of the Supreme Court on this point. Then, there would have been left no scope for rejecting the argument of simultaneous local publication on the ground of any physical, impossibility. For making a substance of the Gazette notification the District Collector need not wait till he receives the Gazette as Ramanna thought. In any case, that is not how Governments, ancient or modern, function. The substance of the proposed Gazette notification can be prepared well in advance and can also be sent well in advance to the Collector with a direction to publish that substance in the locality on a pre-determined day to coincide with the day of the Gazette notification. All this would show that the theory of physical impossibility is more imaginary than real and that there is nothing in the language of the latter part of Section 4 (1) making the simultaneous local publication, impossible or implausible.

54. Ramanna's case noted the fact that the Supreme Court in Abdul Razack case required local publication should be made simultaneously with the Gazette notification or in the alternative, local publication should follow immediately the Gazette publication. This position which is accepted by Vanamalu is somewhat illogically continued to situations where section 5-A was not dispensed with. But Ramanna's case totally rendered Abdul Razack's case ineffective by distinguishing it and confining the rule to the Mysore local rule. We agree with Ramanna's case to the extent that it holds that in the Mysore Rule there are words “as soon as the same is published in the official gazette”. But Abdul Razack's case uses the words “immediately followed” which in our opinion mean only simultaneous publication. While it is right in our opinion for Ramanna to notice the local Mysore Rule, we think it is not correct for Ramanna to suggest the words “immediately followed” in Abdul Razack's case are traceable to the local rule. We disagree even more with the tacit assumption of Ramanna that even the words “accompanied by”, used by Abdul Razack's case are ascribable to the local Mysore Rule. The words “accompanied by”, used by Abdul Razack's case requiring simultaneous local publication as well as the words “followed by” are clearly ascribable only to the language of section 4 (I) of the Act read in the light of sections 5-A and 24. In the local Mysore rule, the words used are “as soon as the same is published in the official Gazette”. There are no special words in that rule like “accompanied by”. Ramanna's attempt to explain the requirement to make simultaneous local publication to the Mysore rule cannot therefore be justified. Otherwise, we will have to hold that Abdul Razack's case said nothing and decided nothing on Section 4 (1) of the Act which would be wholly incorrect. Ramanna's case merely assumed without arguing that the entire decision of Abdul Razack's Page: 267case be explained away by a single explanation based on the peculiarity of the Mysore Rule. The language of the Mysore Rule, “as soon as the same is published in the official Gazette” is not so inconsistent with the requirement/make local publication immediately followed by the Gazette notification. The words “immediately followed by” are in no way inconsistent with the theory of simultaneous local publication as explained above. At any rate, that is how the later judgment of the Supreme Court in Narinderjit's case understood Abdul Razack's case. It follows that amanna's case went wrong in distinguishing Abdul Razack and in not following Abdul Razack's case in the matter of simultaneous local publication on the basis of the so-called Mysore Local Rule.

55. Ramanna's case having interpreted Abdul Razack's case as not requiring simultaneous local publication to be made, had laid down that local publication should be made within a reasonable time. We are constrained to say that in the entire Land Acquisition Act as interpreted by the Abdul Razack's case read in isolation or together with Narinderjit's case as it should have been read we find no justification for making this innovation. The concept of reasonable time in making local publication under Section 4(1) is unknown to the Land Acquisition Act and is capable of producing immense mischief, uncertainty and administrative arbitrariness in its implementation inflicting untold harm on the land-owners and must therefore be rejected.

56. Ramanna's case had even less of a justification to ignore the observations of the Supreme Court in Narinderjit's case which cannot be explained by reference to any local peculiaritics Ramanna's case accepted that “apperently what their Lordships said (in Narinderjit's case) supports the argument of the learned counsel for the petitioners’ regarding simultaneous publication.” But treating those observations of the Supreme Court as not constituting the ratio of the decision of Narinderjit's case, but only its obiter, Ramanna's case refused to follow the observations of the Supreme Court. In our considered opinion, it is most unfortunate that a Division Bench of this Court should disregard in this fashion the clear observations of the Supreme Court. In Narinderjit's case the question before the Supreme Court was whether local publication is required to be made even when section 5-A enquiry was dispensed with. This called for ascertainment of the meaning of Section 4 (1). The Supreme Court, while interpreting the meaning of section 4 (I) of the Act which it was clearly called upon to do in Narinderjii's case, laid down that Section 4 (1) requires local publication to be made and that such a publication should be simultaneous with the Gazette notification in all cases. Ramanna's case is not right even in principle in treating one of the meanings given to Section 4 (1) by the Supreme Court in that context alone as the ratio of the case and the other as obiter. In our opinion both constitute the ratio. For these reasons, we are of the clear opinion that Ramanna's case was wrong in not following the clear rule in Narinderjit's case regarding Section 4 (1) requiring simultaneous local publication.

57. While Vanamalu's case accepted Abdul Razack's case but held that rule of simultaneous local publication would apply to a case where sec 5-A enquiry was not dispensed with Ramanna's case distinguished even Abdul Razack's case on the ground that it turned on the local pecularities of Mysore Rule and thus totally rejected the theory of simultaneous local publication.

58. But Ramanna's case, as Vanamalu's case, never considered the question simultaneous local publication from the point of view of section 24 of the Act.

59. For all the above reasons, we hold that the decisions in Vanamalu's case and in Ramanna's cases are inconsistent with the law declared by the judgments of the Supreme Court in Abdul Razack's case and Narenderjit's case on Section 4 (1) of the Act regarding simultaneous local publication and are also rendered per incuriam having omitted from their consideration the crucial provision in Section 24 of the Act. The entire reasoning and assumption of these cases regarding the uselessness of local publication run counter to section 24 of the Act. Similarly the theory that simultaneous local publication is physically impossible is based on the failure to note that Land Acquisition Act did not take into account fractions of a day.

60. The third in the trilogy is the decision in Salim's case decided by a Full Bench of three Judges on 26-9-1978 (W.P No. 5269/76 and batch). A Division Bench of this Court, doubting the correctness of Ramanna's case and formulating five questions covering its doubts, referred a whole batch of writ petitions filed challenging land acquisitions to a Full Bench. We find that the question of simultaneous local publication is not one of those five questions referred to by the Division Bench. But apparently that question was argued before the Full Bench and considered by the Full Bench, because the entire cases were posted before the Full Bench. In a few lines, the Full Bench summarily rejected the theory of simultaneous local publication in these significant words that would show how the Salim's case carried over and brought forward all the errors of assumption and reasoning in Vanamalu's case and Ramanna's case:

“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 cannot have said so. Something which is not in the section cannot be imported into it. The publication of the substance of Section 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 anything is done as contemplated by sub-section (2), the substance of Section 4 (1) notification must be published in the locality of the land. Several times it may prove to be a Page: 269physical 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 Section 4 (1) requires is that Section 4 (1) notification must be published in the Official Gazette and its substance at convenient places in the said locality. Therefore, we are in agreement with the view taken by the Division Bench in the aforesaid decision”.

61. A perusal of the above extract from the judgment of the Full Bench is sufficient, in our opinion, to show how deficient is the consideration given by the Full Bench to the important question of simultaneous local publication. The Full Bench never considered Abdul Razack's case or Narinderjit's case which are the very foundations for the petitioners’ argument for simultaneous local publication and must have therefore been cited in support of the theory of simultaneous local publication. The Full Bench did not even consider section 24 of the Act. It did not consider Section 5-A of the Act which was considered by the earlier two decisions. Like Ramanna's case and Vanamulu's case, it merely rested its rejection of simultaneous local publication on the inadequate basis of the language of Section 4(1) considered in isolation. The Full Bench was also haunted by the imaginary fear of physical impossibility in making simultaneous local publication that was responsible for Ramanna and Vanamulu's cases holding simultaneous local publication a physical impossibility. The Full Bench presumably acting on that basis went a logical step further in calling simultaneous local publication altogether unnecessary no doubt thereby furnishing internal evidence of its unawareness of the existence of the relevant statutory provisions, like Sections 5-A and 24 of the Act. ‘The Full Bench also did not consider the observations in Abdul Razack's case and Narinderjit's case by which it was bound.

62. The conclusions and the reasoning of the above judgment of the Full Bench in Salima's case partake in all the shortcomings of reasoning and deficiencies of consideration which we have noticed and pointed out in Vanamulu and Ramanna's cases in addition to its own failure to notice the two binding decisions of the Supreme Court and the relevant statutory provisions of the Act. We are, therefore, unable to accept the conclusions of the Full Bench on the question of simultaneous local publication. But then Mr. Ramaswami asked us to refer that question to a larger Bench. But we do not consider that it is necessary to do so. If the Full Bench had referred to all the relevant statutory provisions and the two binding authorities of the Supreme Court in Abdul Razack's case and Narinderiit's case and then reached the conclusion to which it has now come, we would have certainly treated the decision of the Full Bench as binding on us, and referred the matter to a fuller Bench. But for the reasons we mention herein after we hold that the Full Bench judgment never acquired any authority as a binding precedent on this point. Salima's case was rendered without consideration of Section 24 of the Act. This Failure itself is sufficient to take away its Page: 270binding authority. It is well settled that no judgment rendered in ignorance or forgetfulness of a relevant statutory provision and binding precedent would itself enjoy binding authority. A judgment can only acquire its binding authority from the process of consideration of the statutory provisions and the binding precedents. But it cannot inherit such an authority by its conclusions. In law such deficiencies in the process of judging not only impair the vitality of reasoning but also rob it of its binding force as a precedent. A court can only declare the law on a total conspectus of all the relevant statutory provisions and the binding decisions. A Judge-made law like a tailor-made coat should be cut out of the whole cloth of the statutory materials supplied by the Legislature. The Land Acquisition Act forges an indissoluble link between Sections 4 (1) and 5 (A) and 24 of the Land Acquisition Act. A court like the Salima Full Bench that merely considers Section 4(1) in isolation and omits consideration of the binding precedent and Sections 5-A and 24 had not the advantage of taking a total view of the statute could not be considered to have declared on the topic. Its rejection of the simultaneous local publication on the basis of that partisan view cannot be taken to have decided anything on the true meaning of Section 4 (1) which is inseparably linked by the statute with Section 5-A and Section 24. A court before it says what the law is on simultaneous local publication and holds that simultaneous local publication unnecessary and impracticable, must at least consider the past decisions of the Supreme Court on that topic like Abdul Razack's case where the Supreme Court says that the simultaneous local publication is necessary. The Full Bench judgment does not show any awareness of the importance of or even the existence of Section 5-A and Section 24 of the Act for the consideration of simultaneous local publication. By ruling that simultaneous local publication is impracticable and even unnecessary, the Full Bench is laying down a law which runs directly contrary to the law laid down by the Supreme Court in Abdul Razack and Narinderjit cases but without any consideration of those cases. If the Full Bench had considered those decisions and the statutory provisions and arrived at the conclusion at which it had now arrived we would have felt bound by its decision.

63. But the decisions rendered in forgetfulness or ignorance of the relevant statutory provisions or binding judgments of a hierarchically superior court would not acquire any authority as a precedent. Such decision would be treated as rendesred merely per incuriam. Lord Halsbury's??? statement of law on this point made in London Street Tramways v. L.C.C 1898 AC 375, 380 is generally accepted as an authority for the position that a decision rendered in ignorance of a statute acquires no authority as a precedent: But more recent and comprehensive statement of law on this subject is the one made by Lord Green M.R in Bristol Aeroplane Company Case (1944) K.B 718 ???where he said that “The Court is not bound to follow Page: 271a decision of its own if it is satisfied that the decision was given perincuriam, for example, where a statute or rule having statutory effect which would have effected the decision was not brought to the attention of the earlier court”. Even more recent observations of Lord Evershed M.R Morrelle Ltd Wakeling 1955 (2) QB 389, 406 had clearly recognised that the “cases in which decisions should be held to have been given per incuriam are those of decisions given in ignorance or forgetfulness of some inconsistent statutory provisions or of some authority binding on the Court concerned, so that in such cases some feature of the decision or some step in the reasoning on which it is based is found on that account to be demonstrably wrong.” Salmond in his jurisprudence described what type of decisions would be treated as having been rendered per incuriam and when they carry no binding force in these words:—

“A precedent is not binding if it was rendered in ignorance of a statute or a rule having the force of statute i.e, delegated legislation. This rule was laid down for the House of Lords by Lord Halsbury in the leading case (infra 28) and for the Court of Appeal it was given as the leading example of a decision per incuriam which would not be binding on the Court (Young v. Bristol Aeroplane Co. Ltd.) (1944 K.B 729 (CA). The rule appearently applies even though the earlier court knew of the statute in question, if it did not refer to and had not present to its mind, the precise terms of the statute (Lancaster Motor Co (London) Ltd. v. Bremith Ltd. (1941) 1 K.B 675 at 678 (A.A). Similarly, a court may know of the existence of a statute and yet not appreciate its relevance to the matter in hand; such a mistake is again such incuria as to vitiate the decision (Gower v. Gower (1910) I All ER 804 at 806 (C.A). Even a lower court can impugnc a precedent on such grounds.”

64. In Jaisri Sahu v. Rajdevan Dubey 1962 (2) SCR 558 our Supreme Court accepted this doctrine of per incuriam as an exception to the theory of stare decisis. In this Court I have myself applied the docirine of per incuriam in Ponnuramma v. Tahsildhar Kddiri. AIR 1980 AP 267 In that case I said:

“As examples of per incuriam judgments Salmond cites a case where the court knew the statute but did not refer to the precise terms of the statutes as well as to a case where the Court knew the statute but failed to appreciate its relevance to the matter in hand.”

65. I also held in Writ Petition No. 985 of 1982 that doctrine could not be applied by a High Court to the Supreme Court.

66. Applying the above standards to the Full Bench Judgment in Salima case, we find no escape from treating it as having been rendered per incuriam.

67. In as much as we held that the Full Bench Judgment did not acquire the authority cf a binding precedent, we conclude on this point that we are not bound to follow its declaration of law on the point of simultaneous local publication nor bound to refer this question to a fuller Bench. Considering its reasoning on its own merits, we are free to say that for reasons which are to be found in this judgment all over, we consider its declaration of law as incorrect.

68. After the Salima's Full Bench decision, the next decision rendered by this Court on the question of simultaneous local publication is the one in Bheemappa v. The State. AIR 1980, AP Page No. 85 The purpose of acquisition in Bheemappa case was to provide house-sites for Scheduled Castes and Backward Classes. In Bheemappa's case, Section 4(1) Gazette Notification was made on 17th August, 1978. Sec. 5-A enquiry was dispensed with and the local publication was made on 16th January, 1979. Although Section 4 (1) Gazette Notification was quashed in that case, it was done not on the ground that there was no simultaneous local publication, but on the ground that “there is no valid explanation at all for such a long delay for publishing the notification.” The implication is that if there is such a valid explanation, the delay would be condoned. On the other hand Bheemappa's Case expressly declard in paragraph 5 of the report that ‘though under Section 4 of the Act, no time limit is prescribed for in publication of the substance of the notification in convenient places in the locality. Rule-1 provides that it should be done so immediately after the notification is published in the Gazette.? Although in BHEEMAPPA's case it was rightly held in paragraoh-6 of its report on the alowed authority of Abdul Razack And Narinder Jit's Cases that in the matter of obligation to make the local publication, no distinction can be drawn between a case where section 5-A enquiry was dispensed with and a case where it was not so dispensed with and thus impliedly over-ruled Vanamalu on this point, it was wrongly concluded that Section 4 (1) does not prescribe any time limit for making local publication. This conclusion of Bheemappa's case is clearly contrary to the above two noted judgments of the Supreme Court and the purpose behind Section 4 (1) read with Section 24 of the Act. Bheemappa missed the point that the Supreme Court treated the making of simultaneous local publication as on integral part of the meaning of Section 4 (1) of the Act. However, Bheemappa’ Case traces the duty to make local publication immediately in the sense of forthwith as arising not under Section 4 (1) of the Act, but under Rule 1 of the Rules made under section 55 of the Act. In doing so, the Division Bench was apparently influenced by the fact that in Abdul Razack's Case there was a local Mysorian rule which could justify the use of the word ‘immediately’ in the judgment of the Supreme Court. But we have already seen that the Abdul Razack's Case uses, not only the words ‘immediately followed’, but also the words ‘accompanied by’. The words used by Abdul Page: 273Razack's Case, viz., ‘accompanied by are incapable of being explained on the basis of any local Mysorian rule. These words ‘accompanied by’ can only be attributed to the meaning to be given to Section 4 (1) of the Act. Then according to Abdul Razacks Case, time limit for making local publication must be taken to have been fixed by Section 4 (1) itself and that time limit requires making of simultaneous local publication or immediate local publication in that context, ‘immediate means simultaneously’only. Any rule made under the Land Acquisition Act cannot substract from the rigour of this section. Where the Act requires a thing to be done simultaneously or immediately and that requirement does not and cannot change depending upon holding of section 5-A enquiry as Bheemappa's Case itself showed, such a thing cannot obviously be done within a reasonable time under the auihority of a rule made under the Act. The basic error of Bheemappa's Case consists in its failure to draw logical conclusion from its own finding that content of local publication does not get altered. We, therefore, hold that Bheemappa's Case does not lay down the correct law to the extent it holds that Section 4 (1) does not lay down making of simultaneous local publication as the requirement of Section 4 (1) of the Act. We may hewever, note here our agreement with Bheemappa's Case in its holding that the aforesaid rule 1 is a rule relating to local publication. That rule expressly requires the local publication to be made immediately after the Gazette notification. The meaning of the word ‘immediately’ occurring in rule I must be understood in harmony with Section 4 (1) of the parent Act requiring the local publication to be made simultaneously with the Gazette notification. A decision of the Division Bench in Raghava Reddy v. State Of A.P also took the view that the above Rule 1 relates to local publication. If so, there can be no escape from simultaneous local publication. But, in our opinion, neither Section 4 (1) as we interpret it authorises, nor Rule 1 as we hold to mean, sanctions making of any local publication at any time except simultaneously. Clearly they do not authorise local publication to be made within a reasonable time. As we have already shown above, the concept of reasonable time is alien to Section 4 (1) of the Act. We, accordingly, over-rule the decision in Bheenmappa's Case to the extent that it is inconsistent with the theory of simultaneous local publication.

69. The next case to be noted is the Muslim Mission's case. AIR 1980 AP 246 But, in this case the Division Bench, following Bheemappa's case, accepted an explanation for the delay of two and half-months in making the local publication as reasonable. For the reasons we have already given this decision too, must be held to be no good law and it is accordingly over-ruled.

70. The next case on simultaneous local publication is one reported in Uma Maheswara Rao v. The State. AIR 1981 AP 70 The acquisition was for providing house-sites for Harijans. Section 4 (1) gazette notification was published Page: 274on 14-4-1979, but the local publication was made two months thereafter. Section 5-A enquiry was dispensed with. Before the Division Bench the main argument advanced by the petitioner was that rule I was violated by failing to make the local publication immediately after the Gazette notification. The petitioner placed reliance on Bheemappa's case which held that rule I requires such publication and that the requirement of law is constant and unalterable. The Division Bench rejected this argument saying that Bheemappa's case had wrongly assumed that rule I had application even where section 5-A enquiry was dispensed with. The Division Bench then explained the observations in Narinderjit's case regarding simultaneous local publication not having been made in the context of the question of “time lag or interval between the Gazette notification and local publication.” Uma- maheswarao's case thereby implied that the content of local publication changes depending upon the fact whether section 5-A enquiry was dispensed with or not. Accordingly, the Division Bench explained Abdul Razack's case as one concerning with a situation where section 5-A enquiry was not dispensed with. Umamaheswararao's case while holding that local publication must be made even in a case Where section 5-A enquiry was dispensed with held that it is enough if the local publication is made then within a reasonable time.

71. It may be mentioned that Umamaheswararao's case had struck a different note from the one we hear from Bheemappa's case, both on the significance of Rule 1 and also on the local publication. Bheemappa’ scase held that rule 1 relates to a requirement of local publication and that even where section 5-A enquiry was dispensed with the statutory requirement to make local publication would remain the same. But on both the points Umamaheswararao's case held differently. For the reasons we have mentioned already, we hold that Umamaheswararao's case does not lay down correct law either on the question of Simultaneous local publication or on the meaning to be given to rule 1. We acccordingly over-rule Umamaheswara Rao's case also.

72. The next case of a Division Bench is Suryanarayana Reddy v. The State. (1982) 2 ALT 755 Although this Bench decision went fartherest in support of the theory of simultaneous local publication as a requirement of Section 4 (1) it must be admitted that it contained observations in support of the theory of unexplained delay, thereby, impairing the vitality of the theory of simultaneous local publication. In fact, the next decision in B.C Sangh v. The Dt. Collector (1982) 2 ALT 223 a Division Bench has quoted Suryanarayana Reddy's case as rejecting the simultaneous local publication theory and accepting reasonable time theory. Earlier to that decision in B.C Sangh's case, Jayachandra Reddy J., also, in W.P No. 4468/80 dated 12-8-82, interpreted Suryanarayana Reddy's case as laying down the test of reasonable delay. We accordingly hold that Suryanarayana Reddy's case is also not a good law to the extent it accepted any theory other than the theory of Page: 275simultaneous local publication and we over-rule the same to that extent.

73. The last case in the series is the one in B.C Sangh v. The Dt. Collector (1982) 2 ALT 223 which noticed and followed the previous decisions on the point of simultaneous local publication and held that simultaneous local publication is not only not required by Section 4 (1) of the Act, but is also physically impossible to make. For the reasons we have already mentioned, we over-rule this decision also.

74. A Summary Of The Above Discussion And An Examination of Its Implications:

75. We may now summarise our conclusions on this point.

76. Local publication is an essential and an integral part of the content of Section 4 (1) of the Act. Being an essential and an integral part of Section 4 (1) of the Act, the content of local publication whatever it might be, does not change and cannot alter by any such reasons as the dispensing with section 5-A enquiry or the holding of Section 5-A enquiry. In fact holding of or dispensing with section 5-A enquiry has nothing to do with Section 4 (1) and its meening.

77. The reasons for the Land Acquisition Act holding that there should always be local publication are fourfold:—

(a) to arm the land acquisition authorities with the necessary legel authority to enter upon private lands;

(b) to warn the private owner not to offer resistence in ignorance of the Gazette notification to the land acquisition officer;

(c) to enable the land-owner to prefer his objections to acquisition if any under section 5-A within the satatutory period of 30 days;

(d) to warn the private owner against making any new constructions or improvements to his land after the date of the Gazette notification, as such improvements and constructions would not be entitled to be paid compensation as per section 24 of the Land Acquisition Act and the land owner making such improvements in ignorance of the Gazette notification would be an unnecessary loser.

78. The Land Acquisition Act depends upon the local publication as the statutory means of communicating to the land owner the vital knowledge of proposed acquisition on which depends achieving of so maney statutory purposes.

79. Considering the pivotal role the publication is intended by the Statute to play in the scheme of Land Acquisttion Act, the Supreme Court held that local publication should be simultaneous with Section 4 (1) Gazette notification. Any failure to make a simultaneous local publication Page: 276can defeat the statutory purpose underlying section 24 of the Act, no matter the other purposes of the Act are defeated or not. Logically therefore, simultaneous local publication is mandatory under the Act.

80. As the courts have held that Section 4(1) of the Act is mandatory, failure to make simultaneous local publication rendsrs the entire acquisition proceedings null and void.

81. One would not fail to be struck by the lack of logicality and the constricted angle of conspectus of the cases that have taken the view that simultaneous local publication is not the requirement of Section 4 (1) of the Act. Their reasons are varying but not consistent and often times mutually contradictory and are always based on a failure to consider section 24 of the Act. It is therefore no wonder that each one of these cases has offered its own special reasons for rejecting simultaneous local publication. Sometimes it is the language of Section 4 (1). Sometimes it is the dispensing with section 5-A enquiry. Sometimes it is the physical impossibility. Sometimes it is the utter uselessness of making such simultaneous local publication. The only conclusion that is common to all these cases from Vanamulu to B.C Sangh's cases is their rejection of simultaneous local publication and substitution of reasonable time to make local publication in its place. But a casual examination of this theory of reasonable time would itself show that it is based upon an implied admission that Section 4 (1) requires local publication to be made simultaneously with the Gazette notification. Otherwise, reasonable time would be a non-starter. After all, time in law, though not necessarily time in philosophy, must have a beginning and once local publication is agreed to be a necessary ingredient of Section 4 (1) the starting point of such a publication cannot but be the Gazette notification. If that were to be taken to be the starting point for making local publication, it would be obvious that simultaneous local publication becomes unavoidable, because in the Land Acquisition Act does not grant any grace period.

82. The height of this illogicality is reached in the suggestion made in the argument that we should hold that failure to make simultaneous local publication would not invalidate the Gazette notification. The argument is that Gazette notification is anterior to the local publication and therefore, we should hold that failure to make the subsequent simultaneous local publication would only postpone the commencement of the statutory period of 30 days to object statutorily guaranteed to the land owner under section 5-A. Where the local publication is not made simultaneously, but made within thirty days period from the date of the Gazette notification, we should, according to this argument, hold that the objector can still exercise his right of objection. There is nothing we can find either in the statute or in the decision to support this suggestion first made in this court in Umamaheswararao's case and now stressed by the State before us. This suggestion is another form of rejection of simultaneous local publication. This Suggestion subconsciously assumes that filing of objections under section 5-A is the only purpose sought to be served by the local publication. Thus this Page: 277suggestion also once again omits to take into account the statutory purpose underlying section 24 of the Act which is one of the root causes for the cases from Vanamulu to B.C Sangh to reject simultaneous local publication. Further there is no language in any part of the Act which authorises the land acquisition officials to cut into 30 days statutory time given to the owner to object.

83. If we accept this suggestion and give effect to it we would be compelled either to postpone the date of prohibition contained in section 24 Cl. 7 against making improvements to the lands to a date subsequent to the making of local publication or to apply section 24 clause 7 as it stands to-day. Then in the first case any improvements made after the Gazette notification but before the local publication should become compensable by adding extra charges to the State, exchequer and changing the entire scheme of the Act, This is clearly an attempt to disturb the statutory equilibrium. This is enough to show how utterly untenable is this impermissible suggestion. In the second case the very scheme of the Act to warn the land owner against ignorantly improving his land after the Gazette notification would fail. This suggestion, in our view, is clearly unsupportable by the language of the statute and falls outside the legitimate province of interpretation. It may be for that reason that the Punjab Full Bench in Rattan Singh's case summarily rejected this suggestion without assigning any reasons. Any such suggestion can be addressed with propriety only to the Legislature and not to law courts. The very fact that we hold Section 4(1) of the Act is mandatory and simultaneous local publication is an integral part of it implies that failure to make simultaneous local publication would render the Gazette notification invalid. (See H.A Kamath Syed v. Ahmad Ishque 1955 SCJ 267 at p. 278.

84. In Abdul Razack's case the land acquisition notification was set aside by the Supreme Court only on the ground that local publication was not made simultaneously with the Gazette notification although the land owner in that case was heard and his objections were considered by the State before making section 6 declaration. The Supreme Court in that case treating the making of simultaneous local publication as a condition precedent for the exercise of the jurisdiction under Section 4 (1) of the Act, invalidated the entire acquisition proceedings. Such are the inexorable consequences of infractions of mandatory laws. Unless we are to-day changing the entire law of statutory interpretation on mandatory law we cannot accept this suggestion.

85. That the right of the land owner under section 5-A is personal to him and therefore can be waived by him as decided by the Supreme Court in Viiay Cotton & oil Mills Ltd The State of Gujarat 1969 (2) SCR 60 has not got any relevance to the question as to the meaning of Section 4 (1) of the Act. We accordingly reject this argument also and hold that Section 4 (1) of Page: 278the Act requires always simultaneous local publication to be made for upholding the validity of the Gazette notification, In this context, we may take note of the Tamil Nadu Acquisition of Land for Harijan Welfare Schemes Act, 1978 (Tamil Nadu Act No. 31 of 1978) which provides individual notices to be given to the owner of the land proposed to be acquired Such a procedure simplifies avoiding various complications.

86. The Second question: “The limits of the State power under Sec 17(4) of the Act in dispensing with S. 5-A enquiry and the allied questions:—

87. In Kasireddi Papaiah v. Govt. of Andhra Pradesh 1975 (1) APLJ 70, Section 4(1) Gazette notification was published on 24-9-1970, The Gazette notification itself bore the date 19-5-1970. Section 6 declaration was made on 25-2-1971. Section 5-A enquiry was dispensed with under section 17(4) of the Act. But till the writ petition was filed on 16-9-1971, possession of the land was not taken. On 16-9-1971, the petitioners filed the writ petition challenging the acquisition notifications.

88. The argument of the petitioners in that case was that there was no justification for invoking the emergency clause. In support of it, they relied upon the fact that although Section 4(1) Gazette notification was ready bv 19—5—70 it was published four months later on 24-9-70 and S. 6 declaration was made on 25-2-71 after dispensing with S. 5-A enquiry but without taking possession of the lands. These facts, the petitioners in that case, argued would show that there was no justification for dispensing with S. 5-A enquiry. The petitioners argued that the emergency clause under S. 17 (4) of the Act was invoked not because of any urgency but because of a Memorandum issued by the Government in 1954 to the effect that the emergency provision should be invoked whenever land is proposed to be acquired for providing house sites for Harijans,

89. All these submissions which we consider to be weighty and substantial, were rejected by the learned single Judge on the ground that delay on the part of tardy officials to take the further action in the matter would be insufficient to nullify the urgency which existed at the time of issue of the notification and to hold that there was never any urgency. However, it was admitted that delay in taking possession was a relevant circumstance to be taken into consideration in deciding whether there was any urgency at all or whether the emergency provision was invoked mechanically without the Government applying its mind to the circumstances of the case. Yet, the argument of the petitioners wns rejected in that case on the ground that delay on the part of the tardy officials is not attributable to the State. It was said that history has made it urgent that the housing problem of the Harijans should be solved expeditiously and that one can nevor venture to say that the invocation of the emergency provisions of the Act for providing houses for Harijans was bad merely because the officials entrusted with the task of taking further action in the Page: 279matter were negligent or tardy in the discharge of their duties unless of course, it can be established that the acquisition itself was made with an oblique motive. In that case it was also observed that the provision of house sites for Harijans was an urgent and a pressiag necessity and that the invocation of the emergency provisions of the Act could not be said to be improper in the absence of mala fides merely because of the delay on the part of some Government officials.

90. The purport of the above judgment is that the acquisition of land for providing house sites for Harijans is inherently urgent and that invocation of emergency clause, therefore, cannot be found fault with either on the ground of delay that preceded sec. 4 (1) notification or followed section 6 declaration.

91. In W.P No. 5042/78, sec. 4 (1) Gazette notification was published on 7-1-78 which was challenged in the Writ petition on the ground that s. 5-A enquiry ought not to have been dispended with. While agreeing with the petitioner's contention in that case that the authority was obliged to place before the court the materials on the basis of which the authority had formed the necessary opinion to dispense with s. 5-A enquiry, the learned Judges observed that the provision of dwelling houses for the poor has been given by the Madras amendment a legislative recognition as being inherently an urgent one. From that premise the Division Bench concluded that all that the Government should do in order to dispense with 5-A enquiry is to form an opinion that immediate possession should be taken. It must be obvious that many of the observations these judgments contained are general in character and are not based on the particular languge of the Act. But it must be noted that even the Division Bench in that case had laid it down that there should be materials for the authorities to dispense with sec. 5-A enquiry that the need was so eurgnt as to call for the dispensing with enquiry under s. 5-A. The Division Bench while noting that the judgment of the Supreme Court in Narayana v. State of Maharastra AIR 1977 SC 183 laid down that mere existence of urgency would not be a sufficient justification for dispensing with s. 5-A enquiry ruled that the Madras amendment providing for acquisition of house sites for Harijans comes under s. 17 (2) and should therefore be dealt with on a par with the acquisition of lands to meet the sudden changes of course of navigable river or other unforeseen emergencies.

92. In Pardhasaradhy v. Govt. of A.P 1981 (2) APLJ 106 Jeevanreddy J., also stressed, the fact that the power to dispense with s. 5-A enquiry is given to the executive under s. 17 (4) in subjective terms. He observed, “not only has the court to keep in mind that the satisfaction is subjective on the part of the Government, but must also have regard to the additional circumstance that the purpose of acquisition is one recognised by the Legislature itself as inherently urgent.” Earlier, a Division Bench of this court consisting of Page: 280Jaganmohan Reddy C.J, and pardhasaradhy in W.P 109/68 also stressed this aspect of subjective s..junction.???

93. Gangadhaararao J., took these ne view in Punnayya v. Dt. Collector AIR 1982 AP 33 while Jeevan kc j.,??? and Gangadhaararao J., in Chenchamma v. Dy. Collector (1981) (2) ALT 14 reiterated the same.

94. The principles of law laid down by the above decisidon may be summarised thus:—

1. Acquisition of lands for Harijans is inherently urgent and therefore, invoking of the emergency clause cannot ordinarily be found f mlt??? with;

2. The inherent urgency involved in these acquisitions for providing house sites to Harijans is recognised by s. 17 (2) of the Act as amended by the Madras amendment;

3. Acquisition of lauds for providing house sites for Harijans should therefore share in the same urgency as acquisition of lands for providing changes in the course of navigable rivers and other unforeseen emergencies.

4. The power to dispense with is conferred in subjective terms and therefore the judicial scrutiny of the exercise of such power should not be intensive.

95. Although in each one of these cases there was some attempt made to find out wn-’U;or??? the executive authority in dispensing with section. 5-A enquiry hid acted on relevant materials and considerations ana applied its mind to thos materials and considerations it must be admitted that the above conclusions reached by the cases had profoundly enfeebled the efficacy of judicial review in examining the legality of the exercise of executive discretion in dispensing with section 5-A enquiry in cases s of acquisition??? of lands for providing house sites to Harijanss By observing that such cispensing of S. 5-A enquiry cannot ordinarily be, challer ged and that such acquisitions are inherently urgent and therefore by implication permit dispensing with section 5-A enquiry, these cases in effect leave almost graded a carta blanche to the executive to dispense with S. 5-A enquiry. J; should be mentioned that Kasireddy Papaiah's case failed to strike down a Government memorandum taking away the discretion of the Collectors by directing dispensing with S. 5-A enquiry in all cases of acquisitions of lands for providing house sites to Harijans. Added to tlv;??? above, was the argument supplied by some of the observations in the above cases that the power to dispense which was granted in sbujective terms is not ordinarily to be reviewed. All in all, these judgments held treai-*d??? the action of dispensing with sec. 5-A enquiry in cases of acquisition of lands for providing house sites to Harijans as nearly exempt from judicial scrutiny.

96. Prior to Kasireddi Papaiah, the view taken in Apparao v. Special Land Acquisition Officer 1969 (1) An WR 282 and in E.A 236/66 dated 3.10.69 and in Yanadi Reddi, Case 1973 (2) APLJ 408 and Audinarayana v. States 1974 (2) An WR 357 inclined to hold that subsequent delay was fatal to the act of dispesnsing with S. 5-A enquiry. But subsequent to Kasireddi Papaiah a contrary view was taken in W.P 750/75 d/31.8.76 and WA. 370/76 dated 20.9.76, Vanamulu and Ramanna cases. In WP. 750/75 even 3 years delay in taking possession failed to secure any relief to the petitioners.

97. The petitioners have challenged the correctness of these judgments. The argument of the petitioners is that these judgments are contrary to the relevant statutory provisions of the Act and have also missed the meaning and real significance of those provisions. They also argued that these judgments are contrary to the authoritative pronouncements of the Supreme Court on the topic of dispenssng with S. 5-A enquiry. They particularly relied upon the observations of Gurdial Singh's case. We are of the respectful opinion that both on authority and on principle these judgments beginning with Kasireddi Papaiah and subsequent judgments following it should be declared to have taken a wrong view of the law and had unsettled the statutory balance struck by the Act. They can be supported neither by the applicable principles of adminstrative law nor by the authority of the applicable court decisions. In fact no High Court, other than this High Court, had made such sweeping observations. A list of those cases where other High Courts took a contrary view are mentioned in Appendix-A. A careful reading of the Land Acquisition Act and more particularly, the Madras amendment would show that the acquisition of lands for providing house sites for Harijans or to the poor per se was not treated as providing sufficient justification for dispensing with section 5-A enquiry. We wholly agree that there is a genuine necessity to provide house sites for Harijans. It is essential that the State should provide houses for the Harijans for their uplift and levelling up. We may even believe in the need to provide house sites for Harijans urgently. But we are of the clear opinion that from this need it does not follow that section 5-A enquiry should be always dispensed with. The question is whether the provisions of the Land Acquisition Act as amended by the Madras Amendment would justify invoking the urgency clause in all cases of acquisition of house sites for Harijans. Answer to such question must turn upon the provisions of the Act.

98. Section 5-A of the Act provides the land owner with an invaluable but only right to object to acquisition. Once the land owner files his objections within the statutory period the statute requires the Collector to hold oral enquiry into those objections. It is on a genuine and bonafide consideration of such a report from the Collector the statute requires Page: 282the Government to make up its mind either to acquire that particular piece of land or to drop the proposal altogether. The invaluable help which the holding of section 5-A enquiry can furnish through the Collector's report to the Government cannot be over-emphasised. The objector might be able to show in a particular case that the proposed acquisition would uproot him and his family so completely that the Act could not be taken to have intended to bring about such a catastrophe. The objector might even be able to show that the proposal to acquire his land was the result of private feud of the factious villagers. He might be able to show in a particular case that other available private or public land was better suited for the intended public purpose. At any rate, nothing could have been better calculated to infuse a sense of fairness and justice into the administration of law like the law of eminent domain which is inherently unjust and unequal, than a thoughtful offer made by the authorities to the land owner to make his objections, to the proposed acquisition. Above all, it is a well recognised principle of law that before a man is deprived of his property he should be given notice and hearing. Section 5-A enquiry provides no more than a statutory recognition to this anciently accepted nation of fairness and justice. The judgments above referred to do recongnise that an acquisition could be vitiated by extraneous considerations. But strangely, the above judgments did not take into account the statutory remedy given by section 5-A to the land owner to expose the presence of these elements of extraneous consideration to the Collector under S. 5-A enquiry and to the Government through the Collector's report or even to the Collector himself. Unfortunately, the above cases proceed on the assumption that even in such circumstances filing of writ petitions alone is the remedy of the land owner. But in our opinion, there is no basis for this assumption. Administrative actions cannot be substituted by the writ petitions for assuring justice to the ordinary citizen. A citizen cannot live by writ petitions alone. In fact, section 5-A enquiry is intended by the Act to expose such fraud on power by the State authorities so that at the earliest point of time the proposal to make such acquisitions may be forced to be dropped. Section 5-A enquiry is the minimum price which the Act is prepared to pay to the land owner for acquiring his 1 and by compulsion of law. The Act does not proceed on the assumption that S. 5-A enquiry would defeat the purposes of the Act. After all, the acquitition of land for providing house sites to the Harijans is not equivalent to construction of houses. It can never be said that providing houses is so urgent that it cannot wait for a month or two. The error of Kasireddy Papaiah's decision and the decisions that followed it consists in treating the existence of urgency as automatically justifying the dispensing with section 5-A enquiry. The Division Bench in W.P 5042/70 committed an error in thinking that inclusion of a provision for providing house sites to the Harijans in S. 17(2) would amount to providing justification for dispensing with S. 5-A enquiry. In our opinion, neither S. 17(1) nor s. 17(2) has anything to do with the question of dispensing Page: 283of S. 5-A enquiry which was dealt with under S. 17(4) of the Act. Under S. 16 of the Act the State can take possession of private land after an award has been passed. Under s. 17(1) the State can take possession of private land 15 days after the award enquiry notice is given under S. 9(1) of the Act. Under s. 17(2) the State can take possession of the land immediately on the issuance of s. 9(1) notice. Sections 16, 17(1) and 17(2) plainly dealt with a post section 5-A enquiry situation. It would not therefore be right in our opinion to hold that s. 17(2) would provide any justification whatsoever for dispensing with section 5-A enquiry.

99. S. 17 (1) provides for taking possession 15 days after section 19 (1) public notice is issued and S. 17 (2) provides for taking immediate possession following S. 9 (1) public notice. But both sections assume that the regular procedure of holding S. 5-A enquiry was gone through. In other words, even in such situations of urgency the power under S. 17 (1) and 17 (2) of the Act is not treated as antithetical to the the purpose of S. 5-A of the Act. As a result, neither S. 17 (1) nor S. 17 (2) sanctions dispensing with S. 5-A enquiry. The emergencies which S. 17 (1) and 17 (2) speak of are emergencies anterior to the passing of the award but posterior to the holding of S. 5-A enquiry. They have nothing to do with dispensing with S. 5-A enquiry. Dispensing with S. 5-A enquiry has been dealt with only by S. 17 (4). Dispensing with S. 5-A is to enable the Government to make section 6 declaration simultaneously with S. 4 (1) Gazette notification and local publication, so that S. 9 (1) award notice could be given quickly. It therefore follows that the observations made by the Division Bench to the effect that S. 17 (2) by itself justifies dispensing with S. 5-A enquiry in cases of acquisitions for the purposes mentioned in that sub-clause of the section are not correct.

100. Now the local amendment made by the Madras Act No. 21 of 1948 is both in conception and design the same as the old S. 17 (2) of the Act. The Madras amendment also proceeds to meet a situation that arises after S. 5-A enquiry is held. In other words, the Madras amendment merely enlarges the particular instance where immediate possession can be taken following issuance of S. 9 (1) public notice. A very strong Division Bench of the Madras High Court consisting of Rajmannar C.J, and Yenkatrama Aiyer J., in Padayachi v. State of Madias AIR 1952 Madras 756 ruled that the purposes mentioned in the Madras amendment are merely illustrative implying thereby that those illustrations belong to the same genus like natural calamities mentioned in the old S. 17 (2). Even in case of natural calamities section 17 (2) does not provide for automatic dispensing with S. 5-A. It follows, therefore, that the Madras amendment cannot be said to have anything to do with dispensing of S. 5-A enquiry any more than the old, unamended section 17 (2) of the Act has got to do with dispensing of S. 5-A enquiry. The task of dispensing with S. 5-A enquiry is thus left even by the Madras amendment to clause 4 of S. 17 of the Act as it has Page: 284always remained with it eversince it has been first introduced along with S. 5-A by Act No. XXXVIII of 1923. The only effect of the Madras amendment is to enable the Government to take immediate possession following S. 9 (1) public notice. It has no direct impact on dispensing with S. 5-A enquiry. It can be admitted that for the purpose of taking immediate possession on the issuance of S. 9 (1) public notice, the Madras amendment has great significance. But this does not justify the conclusion that the Madras amendment by its own force authorised dispensing wtth S. 5-A enquiry, also. The so-called legislative recognition would only help the Government to take immediate possession following the publication of S. 9(1) public notice. It follows, therefore, that the observations made by the above dicisions that the exercise of executive discretion dispensing with S. 5-A enquiry cannot normally be questioned because of S. 17 (2) cannot be held to be correct.

101. S. 5-A enquiry can only be dispensed with under S. 17 Cl. 4 of the Act. Now for the application of clause 4 of S. 17 the State Government must first be of the opinion that sub-clause 1 or sub clause 2 of S. 17 of the Act would apply to the land proposed to be acquired. Sub Cl. 2 of S. 17 with which we are concerned can only apply to a particular piece of land with respect to which the Collector forms an opinion that it becomes necessary to acquire immediate possession of that land for the construction, extension, or improvement of any dwelling house for the poor. For the application of this clause, it appears to us as a plain matter of construction of the language acquisition of immediate possession of land must have become necessary in presenti at a particular point of time. The Collector can, therefore, from that requisite opinion only on the basis of materials that would reasonably lead him to the conclusion that it has now become necessary to acquire immediate possassion. This criteria laid down by the Madras amendment is the same as the one laid down by the unamended section 17 (2) where taking of immediate possession is envisaged to become necessary by reason of natural calamities. No one can say that taking immediate possession to meet a natural calamity would be an every day affair. This criteria can therefore be fulfilled only if and when acquisition of immediate possession of the land for the construction of a dwelling house for the poor has become necessary by some special set of circumstances. In other words, the requisite opinion of the Collector cannot be formed on the basis of circumstances that are always existing. The statute uses in this part of the Act four key words, each one of which either singly or jointly supports this meaning of the clause 2 of S. 17. The word ‘whenever’, excludes the universal and general application of that clause to situations which are common and with us always. That word restricts the use of that clause to situations that have arisen in presentiat a specified point of time. In other words, the word ‘whenever’ is used in its literal meaning in contrast with the word ‘always’ to delienate a particular point of time or situation in presenti from the past. The second word ‘become’ points out to the above meaning even more clearly. ‘Becoming’ in law, as in Page: 285philosophy, can have application only to a situation in presenti as contrasted with the word ‘being’ that has a connotation of continuity with past. ‘Becoming’ has neither past nor future. It has only a present. Acquiring immediate possession contemplated by S. 17 (2) should therefore have become necessary by some special circumstances that were absent in the past but have arisen in the present by the reason of devastation of houses caused by cyclone or fire or flood or their evaucation though not devastation necessitated by epidemic. In such circumstances alone, it can truly be said that acquiring immediate possession becomes necessary within the meaning of S. 17 (2). The third and the fouth words, ‘immediate’ and ‘necessary’ are even much stronger. Doing of a thing ‘immediately’ becomes necessary only when doing of that thing would not only be imperative for achieving the purpose but is also urgent. Doing of a thing can only be said to be necessary when the result of not doing of that thing is to completely frustrate the object sought to be achieved in that particular situation. Surely, no one can say that by delay of one or two months the purpose of housing the Harijans would be defeated.

102. 73 (a) Now the scheme of section 17 (2) is clear that it never intended to dispense with the regular procedure for acquisition of lands. On the other- hand section 17 (2) has accepted the holding of section 5-A enquiry as a normal rule. The deplorably unhygenic housing conditions of the Harijans which are always with us though can rightly be regarded as a slur on our social order rcquirng taking of immediate remedial measures are not treated by s. 17 (2) of the Act as justifing dispensing with S. 5-A enquiry, Section 17 (2) proceeds on the basis that holding of an enquiry under s. 5-A and following the procedure prescribed indicated in that section if done honestly and with a minimum of efficiency and devotion would not injure the purposes of s. 17 (2) of the Act, because such an enquiry would not take more than a month's time to complete. The age-old problem of construction of houses for the poor cannot be described as a thing that cannot wait even that much of time. It cannot therefore be said to be delayed by the following of such process. In fact, if the Land Acquisition Act is implemented in its true spirit holding section 5-A enquiry and respecting the statutory balance struck by the Act between the private interests and public weal much of this wasteful and time-consuming litigation arousing passions of discard and bitterness would have been avoided and more houses for the deserving poor and the destituted unfortunates could have been constructed. Good people know that in a democratic polity what can be achieved by consent and persuasion cannot be achieved by coercion. The holding of such an enquiry by giving satisfaction to the land owner enlists his co-operation. It is therefore clear that the accepting the premise that the Harijan problem should be expeditiously solved even on a war-footing w’ould not lead to the conclusion that section 5-A enquiry should be dispensed with. At any rate section 17(2) by itself does not authorise dispensing with s. 5-A enquiry on that basis. In our opinion, giving any meaning to the Madras Amendment Act would not only amount to committing an act of impermissible intrusion into the Page: 286law-making domain reserved by the Constitution to the duly electcd legislature but would also amount to acting contrary to the ratio of strict construction laid down by the Supreme Court in such cases as Khub Chand v. State of Rajasthan AIR 1967 SC 1074 and State of M.P v. Vishnu Prasad AIR 1966 SC 1593 we are fully confident that by following the rule of strict contruction no legitimate object or genuine purpose of the Act would ever be defeated or affected.

103. In Narayan v. State of Maharasthra AIR 1977 SC 183 Supreme Court has ruled that section 17 (4) cannot be read in isolation from s. 4 (1) and s. 5-A of the Act, implying thereby that the dispensing power provided for under s. 17 (4) must not normally be used by the acquisition authorities to the detriment of the right of the land owner to have an enquiry under s. 5-A. It is for that reason that Narayan's case rejected the mere existence of urgency as providing justification to dispense with s. 5-A enquiry. Narayan's case ruled that it is not just the existence of urgency but the need to dispense with an enquiry under S. 5-A which had to be considered. The above judgments of our court which are based on the theory of urgency can no longer be held to be good law. In view of the fact that Narayan's case denies mere existence of urgency as providing justification to dispense with an enquiry under s. 5-A it must be held that Narayan's case lays down a rule of construction which requires s. 17 (4) to be read harmoniously with s. 5-A. That excludes the possibility of mere urgency as operating as a justification to dispense with s. 5-A enquiry This view is presented even more clearly by the Supreme Court in the State of Punjab v. Gurdial Singh 1980 SC 316 where Krishna Iyer J. observed;-

“The fourth point about the use of emergency power is well taken. Without referring to supportive case-law it is fundamental that compulsory taking of a man's property is a serious matter and the smaller the man the more serious the matter. Hearing him before depriving him is both reasonable and pre-emptive of arbitrariness, and denial of this administrative fairness is constitutional anathema except for good reason. Save in real urgency where public interest does not brook even the minimum time needed to give a hearing land acquisition authorities should not having regard to sections 14 and 19 burke an enquiry under s. 17 of the Act.”

104. The above observations would clearly show that unless taking possession does not brooke even the minimum time needed to give a hearing to the land owner the land acquisition authorities should not burke an enquiry under s. 5-A of the Act. After these categorical pronouncements by the Supreme Court it is not open to any court in this country to sanction dispensing with s. 5-A eniquiry in vague and general terms on the ground that the acquisition is being done for providing house sites to Harijans. But Page: 287it is suggested by the State before us that the above-mentioned two cases of the Supreme Court in Narayan v. State of Maharastra and State of Punjab v. Gurdial Singh, have no application to our cases, which are said to be governed by the peculiar Madras Amendment Act falling under S. 17 (2) of the Act. We have already shown that the Madras amendment has no such peculiarity. It is true that in Narayan's case, it is a case of urgency coming under s. 17 (1) of the Act and Madras amendment deals with a case of urgency coming under s. 17 (2). But it appears to us to be inconceivably impossible to make a distinction between the cases coming under s. 17 (1) and s. 17 (2) for the purpose of dispensing with s. 5-A enquiry. Both are cases which are recognised by law as equal for the purpose of s. 5-A of the Act. The only distinction which the law recognised between these two classes of urgencies is that in case of those cases coming under s. 17 (1), possession can be taken only 15 days after section 9 (1) public notice while possession can be taken immediately after S. 9 (1) public notice in the case of those cases falling under S. 17 (2) of the Act. Beyond that, it is impossible in our opinion, to find any difference. Above all, the test laid down by the Supreme Court in Gurdial Singh's case applies universally to all cases and to all situations without any exception forbidding dispensing with S. 5-A enquiry except in the rarest of the rare cases where public interest in acquisition would not brook any delay. It is an individual and an objective test that Gurdialsingh's case lays down as different from the general test Kasi Reddi Papaiah's case lays down. We are, therefore, clearly of the opinion that the attempt to distinguish the rule laid down by the Supreme Court in the above two cases on the ground that the Madras Amendment Act recognised a special urgency or inherent urgency is not correct. It is even less logical, to say that the intensity of judicial review of executive action dispensing with s. 5-A enquiry should be minimal in cases of acquisition of lands for providing house sites to Harijans falling under s. 17 (2). In our view, neither the Land Acquisition Act in general nor the implications of s. 17 (2) in particular recognize any such degrees of differential judicial scrutiny. In our opinion, such suggesitons cannot properly be made in the name of construction of an Act. Nor can such suggestions be accepted by Courts of law without seriously impairing the doctrine of separation of powers and abdication of our Constitutional responsibility. In fact, this suggestion is no more than another mode of saying that we should not ordinarily question acquisitions of lands for Harijans on the ground that S. 5-A enquiry was wrongly dispensed with.

105. It may be noted that Kasireddi Papaiah has invoked the benediction of the unfathomable grounds of history as justification for dispensing with Sec. 5-A enquiry. We may agree that even contrary to what the noted British Historian H.A.L Fisher wrote in his preface to his celebrated History of Europe that History yields such secrets to us. But with respect, we cannot agree that history also supports the view that Sec. 5-A inquiry should be dispensed with in acquisitions of lands for providing house sites to Harijans. Even assuming that the history has made the task of the legislture Page: 288to provide house sites to Harijans urgent and imperative, we must observe that we are concerned here, act with the unlimited verities of history, but with the immediate interpretation of a statutory provision. Our concern as a Court is to see how the legislature translated the historic verities into law how the statute intended to achieve a laudable objective and what means it adopted. In considering those questions we should confine our attention to the provisions of the Land Acquisition Act only. It must always be remembered as Owen Dixon C.J, cautioned us to do in his swearing-in speech that people trust these courts, “because they administer justice according to law”.

106. For the above reasons, we hold that the decisions in Kasireddy Papaiah v. Govt, of A.P, S. Pardhasaradhy v. Govt. of A.P and the decision of the Division Bench in W.P 5042/70 and the decision in Chenchamma v. Dy. Collector and the few other cases that had followed them or adopted them, are not good law and we accordingly over-rule them.

107. Now what remains for consideration is the tenability of the view taken by some of the cases to the effect that the decision of the Government to dispense with S. 5-A enquiry in these classes of cases cannot ordinarily be reviewed by courts, because the power to dispense with was conferred in subjective terms. In fact, this is the view which has been taken by the Division Bench of this Court in W.P No. 109/69 by Jaganmohan Reddy C.J, and Parthasarathy J., But this view can no longer be considered to be a correct view. We must take note of the rapid strides the Indian Administrative Law has made in recent times, it can no longer be treated as a mere appendage to the law of statutory interpretation. In Ramana v. the International Airport Authority of India (1979 SC 1628, 1636) our Supreme Court recognised the autonomous existence of the Indian Administrative law. Speaking of the enforceability of the executive instructions, Bhagwati J., observed:—

“It may be noted that this rule, though supportable also as eman: ling??? from art 14 does not rest merely on that article. It has an independent existence apart from art 14. It is a rule of administrative law which has been judicially evolved as a check against exercise of arbitrary power by the executive authority.”

108. Later on, in the same para of the judgment, the learned Judge observed:

“There is no reason why we should hesitate to adopt this rule as a part of our continually expanding administrative law.”

109. Earlier in State of Orissa v. Binapani Dei (AIR 1967 SC 1269) Shah J., denied the power to the executive authority to inflict ‘civil consequences’ on the citizens except in accordance with the principles of natural justice. In Khudiram Das v. State of first Bengal (1975 (2) SCC 81), the Supreme Court dethroned and annihilated the doctrine of unreviewable executive action. Bhagwati J., writing for an unanimous court declared.

“……There is nothing like of unfettered discretion immune from judicial reviewability. The truth is that in a Government under law there can be no such thing as unreviewable discretion.”

110. Speaking of subjective satisfaction in the same case, the learned Judge observed:—

“But that does not mean that the subjective satisfaction of the detaining authority is wholly immune from judicial reviewability. The courts have by judicial decisions carved out an area, limited though it be, within which the validity of the subjective satisfaction can yet be subjected to judicial scrutiny. The basic postulate on which the courts have proceeded is that the subjective satisfaction being a condition precedent for the exercise of the power conferred on the Executive, the courts can always examine whether the requisite satisfaction is arrived at by the authority; if it is not, the condition precedent to the exercise of the power would not be fulfilled and the exercise of the power would be bad. There are several grounds evolved by judicial decisions for saying that no subjective satisfaction is arrived at by the authority as required under the statute. The simplest case is whether the authority has not applied its mind at all; in such a case the authority could not possibly be satisfied as regards the fact in respect of which it is required to be satisfied. Emperor v. Shibnath Bannerji AIR 1943 FC 75 is a case in point. Then there may be a case where the power is exercised dishonestly or for an improper purpose; such a case would also negative the existence of satisfaction on the part of the authority. The existence of improper purpose”, that is a purpose not contemplated by the statute, has been recognised as an independent ground of control in several decided cases. The satisfaction, moreover must be a satisfaction of the authority itself, and therefore, if, in exercising the power, the authority has acted under the dictation of another body as the Commissioner of Policc did in Commissioner of Police v. Gord-handas Bhanji (AIR 1952 SC 16) and the Officer of the Ministry of Labour and National Service did in Simms Motor Units Ltd. v. Minister of Labour and National Service (1946) 2. All. ER 201, the exercise of the power would be bad and so also would the exercise of the power be vitiated where the authority has disabled itself from applying its mind to the facts of each individual case by self-created rules of policy or in any other manner. The satisfaction said to have been arrived at is based on the application of a wrong test or the misconstruction of a statute. Where this happens, the satisfaction of the authority Page: 290would not be in respect of the thing in regard to which it is required to be satisfied. Then again the satisfaction must be grounded “on materials which are of rationally probative value.” Kachindar v. King (AIR 1950 FC 129). The grounds on which the satisfaction is based must be such as a rational human being can consider connected with the fact in respect of which the satisfaction is to be reached. They must be relevant to the subject-matter of the inquiry and must not be extraneous to the scope and purpose of the statute. If the authority has taken into account, it may even be with the best of intention, as a relevant factor something which it could not properly take into account in deciding whether or not to exercise the power or the manner or extent to which it should be exercised, the exercise of the power would be bad. Pratab Singh v. State of Punjab (AIR 1964 SC 72). If there are to be found in the statute expressly or by implication matters which the authority ought to have regard to, then, in exercising the power, the authority must call its attention to the matters which it is bound to consider.”

111. In the two landmark decisions of Barium Chemicals AIR 1967 SC 295 and Rohatas Industries AIR 1969 SC 630 our Supreme Court laid it down that the power the executive enjoys to act upon its own subjective satisfaction does not free its actions from judicial review and that subjective satisfaction is reviewable by the courts on the touchstone of judicially ascertained purposes of the Act. In Barium Chemicals Hidayatuallah J. had not only held that subjective satisfaction operates as a condition precedent for the formation of the requisite opinion but he also held that the formation of such an opinion is judicially reviewable. He also held in that case the burden of showing that the subjective satisfaction was reached on the basis of relevant consideration of relevant materials always rests with the authority.

112. The Bombay High Court in 1971 Bombay Law Reporter at pages 872, 875 and 878 applied the above observations of the Supreme Court in Barium Chemicals case to the land acquisition proceedings. The Bombay High Court held that the burden of showing that the subjective opinion was formed under S. 17(4) of the Land Acquisition Act on a consideration of relevant material rests with the land acquisition authorities. It is in appeal against this judgment the Supreme Court laid down in Narayan v. State of Maharashtra AIR 1977 SC 183 that the burden of showing that the subjective satisfaction was properly arrived at rests on the land acquisition authorities. It may be mentioned that Lord Atkin ruled that “In accordance with British jurisprudence no member of the executive can interfere with the liberty or property of a British subject excepton the condition that he can support the legality of his action before a court of justice……“(See Eleko's case -1931 Appeal cases 662). The Indian Administrative law can to-day stoutly deny the existence of any judge-proof law. The Indian Administrative Law has truly come off age. In its eventful growth to adulthood the total rejection of the doctrine of unreviewable executive discretion and establishment of firm regime of intimate judicial supervision over the process of exercise of executive discretion granted even in subjective terms constitute the two major miles stones. In fact Dicey's fears that conferment of wide discretionary authority on the Government would undermine his dearly loved regime of Rule of Law, were belied by the above innovations of modern administrative law. His assertion that conferment of wide discretionary authority on the part of the Government cannot be compatible with the rule of law was belied by the growth of Administrative law. Surely in the modren world where the State has accepted the responsibility to act as a service corporation to its people, exercise of wide discretionary powers by the executive would become unavoidable and therefore cannot be denied to the State. But it must be put down to the credit of the modren administrative law that while recognizing this historic reality it ensured the observance of rule of law by its developed techniques of controlling the executive discretion.

113. In Padfield's case the House of Lords refused to accept a Ministerial rejection to appoint a Committee of Investigation although that rejection was based on a statute that provided for the appointment of a Committee of Investigation only “if the Minister in any case so directs.” It was a clear rejection of the theory of unreviewable executive discretion. The wild horse of executive discretion was tied down to the statutory purposes ascertained by the Courts. On Breen v. Amalgamated Engineering Union (1971) 2 QB 175 Lord Denning took this decision to mean that a judicial review. can invalidate a statutory action for reasons other than lack of bonafides. Earlier, Lord Greene M.R observed in the celebrated case of A.P Picture House v. Wednesbury Corporation. (1948) 1 KB 223

“The exercise of such a discretion must be a real exercise of the discretion. If, in the statute conferring the discretion, there is to be found expressly or by implication matters which the authority exercising the discretion ought to have regard to, then in exercising the discretion it must have regard to those matters. Conversely, if the nature of the subject-matter and the general interpretation of the Act make it clear that certain matters would not be germane to the matters in question, the authority must disregard those irrelevant collateral matters……It has been perhaps a little bit confusing to find a series of grounds set out. Bad faith, dishonesty-those of course, stand by themselves - unreasonableness, attention given to extraneous circumstances, disregard of public policy and things like that have all been referred to according to the facts of individual cases, as being matters which are relevant to the question.”

114. The two recent hall mark cases of the English Administrative Law in Laker Airways 1977 (2) WLR 234 and Taneside case 1977 AC 104 show the degree of control imposed by courts on subjective powers of the executive.

115. From the above it follows; that whenever S. 5-A enquiry is dispensed with although for providing house sites for Harijans, the court must examine whether there are materials before the authority that would reasonably justify the dispensing with section 5-A enquiry and whether the authority has honestly applied its mind to these matters and excluded all irrelevant considerations. It is equally important for the statutory authorities to note in this connection that the statutory provisions of section 17 (1) and 17 (2) of the Act do not authorise them to dispense with section 5-A inquiry as a matter of routine. The authorities must ask the right question whether the taking of immediate possession would not brook the minimum delay involved in holding section 5-A enquiry. In considering such questions the acquisition authorities must scrupulously disregard any Government memos such as the one mentioned in Kasi Reddy Papaiah's case that requires them to dispense with section 5-A enquiry in all such cases as a matter of policy.

116. For all these reasons we agree with the decision of the Full Bench of our court in T. Narasaiah v. Bhadraiah AIR 1973 AP 75 and hold that dispensing with section 5-A enquiry by the executive is always judicially reviewable on the grounds mentioned hereinabove. We may mention that the Supreme Court in Swadeshi Cotton Mill's 1981 SC 819 case was not prepared to discard the rule of natural justice even though giving of notice could have conceivably affected the production of goods and services vital for the well-being of the community.

117. The next question:—Does the subsequent delay invalidate the earlier act of dispensing with 5-A inquiry.

118. It is necessary first to explain the implications of this question. Section 5-A can be dispensed with only on valid and substantial grounds as to the existence of circumstances justifying invoking of urgency clause. The question is where the authority has invoked the urgency clause, can this action of invocation of urgency by the authority be questioned later on on the ground that there was subsequent delay in not taking possession of the lands. Logically examined, this question cannot but be answered in the negative, because law does not read the subsequent delay as a condition of defeasance to invalidate the earlier action of dispensing with section 5-A enquiry. It, therefore, follows, logically, that subsequent delay cannot invalidate the earlier action of dispensing with 5-A enquiry. But it must be admitted that the framing of this question and the above answer is wholly Page: 293formalistic. When we say that subsequent delay invalidates the earlier action of dispensing with 5-A enquiry, what we mean to say is that the authority while invoking the urgency clause and dispensing with 5-A enquiry acted without proper materials before it and this fact has come to be known through the authority's failure to take possession of the lands. Examined from that angle, there can be no doubt that subsequent delay would invalidate the earlier invocation of urgency clause. The judgment of the Supreme Court in Babu Singh v. Union of India 1979 SC 1713 contains a statement that reflects both facets of this question. In Babu Singh's case the Supreme Court said : “It may be that after invoking the power under Section 17, if the proceedings for acquisition dragged and possession was not taken, it may reflect upon the exercise of power under Section 17. It may indicate that there was no urgency and there is colourable exercise of power.” In other words, the subsequent failure to take possession reflects upon the state of facts considered by the authorities earlier in invoking the urgency clause. The Supreme Court categorically said that the subsequent failure may indicate that there was no urgency and there was a colourable exercise of power. These observations would clearly show that failure to take possession can normally provide irrebuttable proof of the fact that Section 5-A was not rightly dispensed with. The subsequent delay would, therefore, provide fresh evidence to show the mind of the State at an anterior point of time when Section 5-A enquiry was dispensed with. If the question is viewed from this angle and we think that it should be viewed only form that angle, it must be held that subsequent delay would normally invalidate the earlier acquisition proceedings. But where there were supervening circumstances preventing the State from taking possession of the land, the failure to take possession then might not be attributed to the failure to consider the materials properly at an earlier point of time. But where the State fails to take subsequent possession although no supervening circumstances had prevented it from doing so, that failure would clearly reflect as the Supreme Court said in the above Babu Singh's case on the state of the mind and on the circumstances which were present before the State at the time of its dispensing with 5-A enquiry showing up the State's professions of urgency to be empty and false and as not being honest. That is how subsequent delay reflects on the anterior action of dispensing with 5-A and invalidates the latter. There is no other way of subsequent delay reflecting on the State of the mind of the Government at an anterior date.

119. Kasireddy Papaiah's case assumes that such subsequent delay can invalidate the action of dispensing with 5-A enquiry, but avoids the invalidation by ascribing the subsequent delay to the tardy officials as different from the State. Kasireddy Papaiah did not say that subsequent delay even if committed by the State itself would not invalidate the action of the State invoking the urgency clause. But in our opinion the distinction brought by Kasireddy Papaiah between the action invoking emergency clause and the failure of the officials to take possession is not correct. In both cases it must logically be held that the action is attributable only to the State because the State can act only through its officials.

120. The above discussion shows that the subsequent failure to take possession so long it is attributable to the State is capable of invalidating the earlier invocation of the emergency clause by operating not as a condition of defeasance, but as a circumstance providing irrebuttable proof of the State of the mind of the Government in invoking emergency clause. For that reason we hold that subsequent delay in taking possession not attributable to any unforeseen circumstances or causes such as natural calamities should be counted by the court as invalidating the earlier action of invocation of emergency clause.

121. The test laid down by Krishna Ayyar, J. in State of Punjab v. Gurdial Singh 1980 SC 310 makes invalidation of dispensing with section 5-A inescapable on the ground of subsequent delay. In fact much of the above discussion based upon Babu Singh's case is rendered unnecessary by the decision in Gurdial Singh's case. In Gurdial Singh's case an objective test is laid down by the Supreme Court and unless that objective test is satisfied, dispensing with 5-A enquiry should always be held to be invalid. According to that test, all acts of dispensing with 5-A enquiry would become invalid unless the situation at that point of time would not brook even the minimum delay of hearing the land-owner. In deciding that question whether the proposed acquisition would not brook even the minimum delay and hearing subsequent delay will surely efford irrebuttable proof. The learned Judge observed in Gurdial's case : =

“The fourth point about the use of emergency power is well taken. Without referring to supportive case law, it is fundamental that compulsory taking of a man's property is a serious matter and the smaller the man the more serious the matter. Hearing him before depriving him is both reasonable and pre-emptive of arbitrariness, and denial of this administrative fairness is constitutional anathema except for good reason. Save in real urgency where public interest does not brook even the minimum time needed to give a hearing land acquisition authorities should not having regard to sections 14 and 19, burke an enquiry under section 17 of the Act.

(emphasis supplied)

122. According to these observations of Krishna Iyer J., the only question open for courts to ask is whether the enquiry under Section 5-A had been burked because public interest did not brook even the minimum delay inherent in giving a hearing. The very fact that there was subsequent delay in taking possession would show that public interest would not have suffered by holding section 5-A enquiry and that section 5-A enquiry should not have been burked. In the light of the above latest pronouncement of the Supreme Court it must be held that subsequent delay would automatically operate as a conclusive piece of evidence to show that the Government did not act honestly in invoking the urgency clause, of course subject to the one exception mentioned above.

123. There is yet another more substantial reason why we should hold that the terminatory failure to take immediate possession should result in invalidation of the act of dispensing 5-A enquiry. The effect of making Section 4(1) Notification is well recognised to be to freeze the land. Issuance of Sec. 4 (2) Notification almost turns the land proposed to be acquired into res extra commercium. No improvements can be made to such a piece of land. No buyers can be found for such a piece of land. The continuance of such state of affairs for a long time cannot but adversely affect the owner of the land and therefore cannot but be regarded as outside the intention of the Land Acquisition Act. Unfortunately however there is no express provision dealing with this situation presumably because the Act expects the authorities to complete the land acquisition proceedings within a short time. If the courts do not force the land acquisition authorities to complete the acquisition proceedings expeditiously and within as short a time as possible the Land Acquisition Act would then be turned by the officials into even a greater engine of oppression. The purpose of the Act then would be perverted. Taking possession and passing of an award is a normal part of the completion of the acquisition proceedings. The court must therefore compel the officials to complete acquisition proceedings within a short time so that the Land Acquisition Act may not be used for a purpose other than for which it has been intended to be used. The court should therefore invalidate the act of dispensing with Sec. 5 (1) enquiry whenever such an act is not followed by taking immediate possession. The essential next step of possession cannot otherwise be enforced. This is no doubt in addition to the invalidation of Sec. 4 (1) notification in such circumstances. This reasoning would surely strengthen in our opinion the theory that subsequent failure to take possession should invalidate the act of dispensing with Sec. 5-A enquiry.

124. We accordingly Over-rule the decision in Kasireddy Papaiah and the Judgment in W.P 750/75 dated 31-8-1976 and the Judgment in W.A 370/76 and the Judgment in Vanamulu and Ramanna's case and agree with the Judgment of Raghuvir J., and Narasinga Rao J., in W.P 1471/77. What we said above is not, in any way, detracted from the earlier judgment of the Supreme Court in Jogiram v. State of Haryana 1971 SC 1033 which is a case relied Page: 296upon by the Division Bench in W.A 370/76 but which dealt with the question not of subsequent delay but of the time taken in preparing for acquisition. That case has nothing to do with the question whether there was or was not an urgency on the day of invoking the urgency clause.

125. We accordingly hold that failure to take immediate possession of lands after invoking the urgency clause would result in invalidation of the action of the Government in invoking the urgency clause except where such failure is attributable to causes beyond the control of the State. It is suggested that failure to take subsequent possession might have been the result of the non-availability of budgetary funds or the reason of standing crops. But in our opinion these reasons cannot prevent the invalidation of the Act of dispensing with Sec. 5-A because these are not reasons of natural calamity no such reasons could have been unforeseen at the time of dispensing with Sec. 5-A enquiry.

126. The question of preparatory time:—The time taken for making 4 (1), notification cannot, in our view, have anything to do even as a circumstance with the question of dispensing with Sec. 5-A enquiry. Subsequent delay Can show that there was never any urgency present to the minds of the authorities. Unlike subsequent delay which is taken to reflect upon the question of dispensing with Sec. 5-A enquiry the time taken for preparation for making such 4 (1) Gazette notification cannot be considered; s having anything to do with dispensing with Section 5-A. This point is so decided by the Supreme Court in Jogiram v. State of Haryana (1971 S.C 1033). Agreeing with the Judgment of the Division Bench in 1982 (2) A.P.L.J.P 95, we accordingly hold that the time taken for preparing the publication of Sec. 4 (1) notification cannot invalidate dispensing with Sec. 5-A enquiry.

127. Administrative Instructions:—There are many administrative instructions or directions issued by the State Government from time to time relating to the acquisition of lands under the Land Acquisition Act. Some of these directions are already refferred to in the earlier part of this judgment. But there are some more. But none of these instructions are made under any Statute. The question which we have to consider now is whether any acquisition of lands undertaken by the State contrary to those administrative instructions, directions, are liable to be struck down and invalidated? That raises squarely the question of enforceability of the administrative directions by the Courts.

128. The earlier view of the law on this topic is that the administrative directions arc not capable of being enforced by the courts. As a representative decision of this view, we may refer to Fernandez v. State of Mysore AIR 1967 SC p. 1753 where the Supreme Court observed:—

“Non-observance of such administrative instructions does not confer any right on any member of the public……” But in Page: 297a series of decisions administrative instructions were violated.

129. But it is the decision of the Supreme Court in Ramana v. I.A Authority of India 1979 SC 1635 that has placed this doctrine of enforceability of Administrative instructions on a firm legal basis by holding that it is part of administrative law. The Supreme Court observed in that case.

“It is a well settled rule of administrative law that an executive authority must be rigorously held to the standards by which it professes its actions to be judged and it must scrupulously observe those standards on pain of invalidation of an act in violation of them………It may be noted that this rule though supportable also as emanating from article 14, does not rest merely on that article. It has an independent existence apart from article 14. It is a rule of administrative law which has been judicially evolved as a check against exercise of arbitrary power by the executive authority.”

130. The view our Supreme Court and our High Court had taken on the question of enforceability of administrative instructions is similar to the one taken by English Courts in R. Criminal Injuries Compensation Board Explain 1967 3 W.L.R 348 where the court of Appeal declared its readiness to invalidate a decision reached by the Criminal Injuries Compensation Board on the ground of its inconsistency with the administrative instructions. Prof. H.W.R Wade, commenting on this case in 82 Law Quarterly Review 486 wrote, “Indeed, the court has broken out of the field of law altogether, for it has held that it has power to issue certiorari to quash a decision for mere inconsistency with administrative directions.” Mr. Justice Frankfurter, expressed a similar view on the enforceability of administrative instructions in Vitarelli v. Seaton 359 US (1959) where he observed, “an executive agency must be rigorously held to the standards by which it professes its action to be judged” Welcoming this new wave of administrative law Prof. Wade wrote in 81 Law Quarterly Review pages 476, 377 laying bare the underlying principle in the following:—

“……the underlying attitude is that the court wants to see powers exercised according to ascertainable rules and standards, and so is disposed to seize upon any rules and standards that can be related to the case, whether or not they are prescribed with binding legal force.”

131. It would indeed be a sad day if we sitting here give up on our own the use of this useful device to control the exercise of discretionary powers by the executive. Unfortunately enough, attention of the Division Bench in Chenchamma's case 1982 (2) ALT 14) was not drawn to the dazzling spectacle of the latest developments in the field administrative law. We Page: 298therefore cannot agree with the observations made by the Division Bench in Chenchamma's case that administrative instructions issued by the State Government do not bind the land acquisition authoritie's Accordingly, we overrule Chcnchammds decision on this point also. We also declare that any acquisition of private lands found to be contrary to the applicable administrative instructions Would be null and void.

The minor questions—

132. (a) In some Of the cases it is said that section 6 notification cannot be made unless the acquisition authorities inspectr the land under Section 4(2) and make a report on the suitability of the land This submission amounts to saying that Section 4(2) should be read as a condition precedent and the fulfilment of that condition precedent is a must for ‘the exercisc of power under section 6. We cannot find any support for this submission in the language of either Section 4 (2) or section 6. Section 4 (2) is an enabling provision. That section merely enables’ the authorities to inspect but does not oblige them to do so. Section 6 does not speak of receipt of any report from Section 4(2). Section 6 also must be held to have nothing to say in support of the present submission of the petitioners. We accordingly reject this argument.

133. (b) In some cases it is argued that unless Section 4 (1) is fully complied by making gazette publication and local publication, section 6 declaration cannot be made, This argument amounts to saying that S. 4(1) gives a jurisdictional start to the Land Acquisition Act: Nothing can be done under the Act without first complying with Section 4(1) irrespective of the fact whether section 5-A dispensed with or not. As we have already held, in the body of this judgment, Sec. 4(1) operates to give jurisdiction nal start. We agree with this submission and hold that section 6 declaration can only be made after Section 4(1) gazette notification and Sec. 4(1) local publication.

134. (c) In sonte other cases, it Is atrgued that in view of our holding that Section 4 (1) lays down conditions precedent without fulfilment of Which the Act does not become operational at all, failure to fulfil the conditions of of Section 4(1) should be held to be fatafio??? the entire acquisition proceedings The practical significance of this argument is to assert that acquisition proceedings would be null and void bn the ground of failure to comply with sec. 4(1) of the Act even when the petitioners had waived or could be deemed to have waived their rights under Section 4(1) of the Act. For example, the land owners in a case could have made their representations or even without a simultaneous local publication being made. We are of the clear opinion that even when suclh representations are made by the land owriers and even when consideration Was g;ven by the authorities for their representations, the illegality arising out of the failure to make the simultaneous local publication cannot be cured. We hold Abdul Razack's case is directly on this point. We accordingly hold so. The result is that whenever there is a non-compliance of S. 4(1) the acquisition proceedings will be declared null and void.

135. Although the Constitution of this Full Bench is occasioned by two specific orders of reference passed by two Division Benches, the scope of the arguments advanced by the counsel before the Full Bench and consideration given by this Full Bench to the matters posted before it extended to the entire range of a fuli fledged hearing necessary for disposing of forty and odd writ pititions listed before the Full Bench This is done over ruling a preliminary objection raised by Sri :Ramaswamy, learned counsel for the State, who urged that the hearing should be confined to the two specific questions mentioned in the orders of reference. The two orders of reference by the two Benches are general in nature and do not limit the scope of hearing to any particular questions Of law. A bare reading of the two orders of reference, one made by MadhavaReddy, J. (as he then was)and Jeevan Reddy, J., and the other made by Ramchandra Rao, J. and Lakshminarayana Reddy, J. will amply bear out this fact. In addition to these matters, over forty writ petitions have been posted for final disposal before us. In those circumstances, we have proceeded to hear in full these matters.

JUDGMENT

Judgment of the Full Bench delivered by KODANDA RAMAYYA, J

On his behalf

136. This Full Bench is formed to answer two references:

1 Whether the delay in taking possession of. the lands acquired uhder the Land Acquisition Act after invoking the urgency clause and dispensing with the enquiry under Sec 5-A of the Act renders the action of the Government in invoking the urgency clause invalid?

2. Whether the publication of the substance of the notification in the locality under Sec. 4 (1) of the Land Acquisition Act should be made simultaneously or at any time and whether any delay in so publishing would vitiate the entire acquisition proceedings?

3. A third question also was raised before us viz., Whether the violation of administrative instructions issued by the Govern- ment not to acquire lands of the persons with meagre land holding would vitiate, the land acquisition proceedings?

137. Before answeriring.these questions let me place on record my and view regarding the hearing and final disposal of cases by any Full Bench inthe General interest of practice and procedure to be followed in these matters.

138. Rule 2 of the Rules of the High Court of Judicature, Andhra Pradesh, Appellate Side, empowers a Division Bench of two Judges to refer any matter or any question of law to be determined by a Full Bench. Simtilarly. Rule 6 reserves the special power of the Chief Justice Page: 300to direct that any application, petition, suit, appeal or reference shall be heard by a Full Bench. It is well known that references under Indian Divorce Act and Indian Stamp Act and also under Sec. 96 of the Code of Criminal Procedure, though heard by three Judges, are called special benches but not Full Benches as contemplated by Rules 12 to 6 of the Appellate Side Rules. No doubt when a question of law is referred to a Full Bench as per Rule 3 of the said Rules, the Full Bench may finally decide the case or return it with an expression of its opinion upon the question referred for final adjudication by the Court which referred the question.

139. It is always desirable that the referring Court should formulate the point refer the question to a Full Bench. If the entire case is referred without formulating the point, the Full Bench can formulate the point and decide the said question. It is not desirable that the Full Bench should decide all the cases that are posted before it without formulating the point for determination and without directing the cases to be heard on merits either by the referring court or in usual course. The main purpose of the Full Bench is to resolve any conflict of decisions and examine whether the judgments of the court are shaken because of the subseruent judgment of the Supreme Court or they require re-consideration due to preponderence of authorities when other High Courts take a different view. Further a lot of public time will be saved if the Full Bench hears only questions of law. If the referring court is asked to hear the case on merits there will be acditional advantage of the same counsel appearing in the case who will be in a position to elucidate and request the referring Court to apply the law correctly as laid down by the Full Bench and the Judges presiding over the referring court (if other than members of Full Bench) also will be in a greater advantage to appreciate the new legal position laid down by the Full Bench. When the cases themselves are referred to a Full Bench without formulating the questions, the counsel is free to raise any question and challenge any decision of a Division Bench for the first time without the advantage of any Division Bench considering the necessity for re-consideration of the opinion expressed by another Division Bench on an earlier occasion. There are in tances where the members of Full Bench, having rejected the reference being unnecessary, went on deciding the case on merits as the whole case was referred to them or they decided the cas wholly on a different question of law not referred to them. See for those instances-Page 2 in the Preface of the Quinquennial Review of Full Bench Cases 1976—80 by Kodandaramayya). According to me it is conducive for the growth of law that the Full Bench after answering the questions referred to it, shall refer cases to the referring court, or direct the cases to be heard in usual course. Further the direction in subsequent cases to post them along with the reference could only mean that they should await the Full Bench decision but not that they were also referred to Full Bench.

140. However my learned brothers have inclined that in view Page: 301of the fact that the cases themselves are parted before us, it is proper that we hear them and dispose them of on merits. Hence I have stated above, at least for future consideration, as I felt bound that the procedure indicated by me is more desirable to be followed in the general intersts of law relating to precedents.

141. Sarvasri B. Subhashan Reddy, S. Venkata Reddy, A. Panduranga Rao, V.T.M Prased and P. Babul Reddy and G. Narayana Rao appeared in this batch of writ petitions for the petitioners and Sri K. Rama Swamy, the Government Pleader appeared for the State and Sri M. Jagannadha Rao appeared for some of the respondents and both sides cover a wider field in respect of these questions. Petitioners’ advocates argued common questions and hence there will be some over-lapping in the contentions, and we shall also refer their special points in the course of our judgment.

Rule of Construction.

142. The petitioners’ counsel contended that the proceedings under the Land Acquisition Act are exproprietory in character and the provisions of the Act must be strictly construed as they encroach upon the rights of the citizens. Sri A. Panduranga Rao drew our attention to a passage in Colley's Constitutional Limitations, 8th Edition at page 1120.

“Whether in pursuance of law the property of an individual is to be divested by proceedings against his will, a strict compliance must be had with all the provisions of law which are made for his protection and benefit, or the proceeding will be ineffectual. Those provisions must be regarded as in the nature of conditions precedent, which are not only to be observed and complied with before the right of the property owner is disturbed, but the party claiming authority under the adverse proceedings must show affirmatively such compliance”.

143. He also relied upon two judgments of the King 's Bench. In Re Bowman 1932 (2) KB 621 at page 633 Swift, J., held that a statute under which a person is deprived of his right to the property should be construed strictly against the local authority and favourably towards the interests of the applicant. In Turton v. Turnbull 1934 (2) KB 197 at 201 Scrutton D.J, while construing the Agricultural Holdings Act, 1923 held that “as by the Act he is being deprived of his common law rights, I think we must construe the Act with some liberality in his favour, or scrutinize the tenant's claim with some strictness”. This rule of construction as applied by Supreme Court for Land Acquisition Act was also relied upon by the petitioners. In State Of M.P v. Vishnu Prasad AIR 1966 SC 1593 at 1598 Page: 302Wanchoo, J., held:

“Two things are plain when we come to. consider the construction of Ss. 4, 5-A and 6. The first is, that the Act provides for acquisition of land of persons without their consent, and though compensation is paid for such acquisition; the fact however remains that land is acquired without the consent of the owner thereof and that is a circumstance which must be borne in mind when we come to consider the question raised before us. In such a case the provisions of the statate must be strictly constructed as it deprives a person or his land without his consent”.

144. Again in Khub Chand v. State of Rajasthan AIR 1967 SC 1074 at page-1077 Subba Rao, Chief Justice emphasised this rule stating that “the provisions of a statute conferring power on the Government to compulsorily acquire lands shall be strictly construed”. Maxwell ‘On the Interpretation - of Statutes’ Twelfth Edition at page 251 under the heading “Encroachment of rights” stated that, “Statutes which encroach, on the rights of t h e subject, whether as regards person or property, are subject to a strict construction in the same, way as penal acts. It is a recognised, rule that they should be interpreted, if possible, so as to respect such rights, and if there is any ambiguity the construction which is in favour of the freedom of the individual should be adopted”. Again Craies “On Statute Law” at page 121, 7th Edition on the authority of 1932 (2) K.B 621 (1) and 1934 (2) K.B 197 (2) that were noticed above, states: “It thus appears that the courts will construe with strictness statutes which entail a deprivation of common law rights.

145. Sri Ramaswamy, appearing for the State, wanted to adopt a different rule of construction in view of the fact that these acquisitions are intended for the benefit of acquiring land for landless poor and in the present case most of them are scheduled castes and scheduled tribes and he also drew our attention to Arts. 38, 41 and 46 in Part IV of the Constitution for adopting a benevolent construction in favour of these acquisitions. He further submits that in view of Art. 19 (1) (e) read with the Directive Principles embodied in the above Articles, in particular Art. 46, the State is trying its best to provide shelter and such action is justified even at the cost of the right of other persons belonging to the other community. He also drew our attention to three judgments of the Supreme Court. In State of Kerala v. N.M Thomas AIR 1979 SC 490 where their Lordships had to consider the validity of Rule 13-AA of Kerala State and Subordinate Services Rules whereby the Govt, exempted for a specified period members belonging to the scheduled castes and scheduled tribes from passing the Departmental tests and thereby enabled them to obtain the promotions to higher posts. At page 532, Krishna Iyer, J., laid emphasis on the Directive Principles in these words “The core conclusion I seek to emphasize is that every step needed to achieve in action actual, equal, partnership for the harijans, alone amounts to social justice Page: 303not enshrinement of great rights in Part III and good goals in p’rt??? IV. Otherwise, the solemn undertakings in Articles 14 to 16 read with Arts. 45 and 335 may be reduced to a ‘teasing illusion or promise of unreality”. The Supreme Court upheld the said concession of exemption to Scheduled Castes and Scheduled Tribes’ negativing the plea of discrimination in view of Art 16(4) of the Constitution.In Minerva Mills Ltd. v. Union of India AIR 1280 SC 1789 Chandrachud, Chief Justice ruled; “There is no doubt that though the courts have always attached very great importance to the preservation of human liberties, no less importance has been attached to some of the Directive Principles of State Policy enunciated in part IV………………………………………Therefore, the importance of Directive Principles in the scheme of our Constitution cannot ever be over-emphasized. Those principles project the high ideal which the Constitution aims to achieve. In fact Directive Principles of State Policy are fundamental in the governance of the country and the Attorney General is right that there is no sphere of public life where delay can defeat justice with more telling effect than to one in which the common man seeks the realisation of his aspirations. The promise of a better tomorrow must be fulfilled today, day after tomorrow it runs the risk of being conveniently forgotten. Indeed so many tomorrows have come and gone without a leaf turniug that today there is lurking danger that people will workout their destiny through the compelled cult of their own “dirty hands”. Worlds bandied about in marbled halls say much but fail to achieve as much.” In A.B.S.K Singh (Rly) v. Union of India AIR 1981 SC 298 relating to reservation of posts for scheduled castes and scheduled tribes at promotion level, the Supreme Court justified the State action and Justice Krishna Iyer emphasised his view quoting from 1976 Supreme Court 490 (5) that”In a spacious sense, ‘equal opportunity’ for members of a hierarchical society makes sense only if a strategy by which the underprivileged have environmental facilities for developing their full human potential. This consummation is accomplished only when the utterly depressed groups can claim a fair share in public life and economic activity, including employment under the State, or when a classless and casteless society blossoms as a result of positive State action. To help the lagging social segments, by special care, is a step towards and not against a larger and stabler equality……”

146. Sri Ramaswamy also drew our attention to the observation of Chinnappa Reddy, J., while presiding over this Court in Kasireddy Papaiah v. Govt. of A.P 1975 I APLJ 70 viz, that the housing conditions of Harijans all over the country continue to be miserable even today is a fact of which courts are bound to take judicial notice. History has made it urgent that, among other problems, the problem of housing Harijans should be solved expeditiously. The greater the delay the more urgent becomes the problem. Therefore, one can never venture to say that the invocation of the emergency provisions of the Land Acquisition Act for providing house sites for Harijans is bad Page: 304merely because the officials entrusted with the task of taking further action in the matter are negligent or tardy in the discharge of their duties, unless, of-course, it can be established that the acquisition itself is made with an cblique motive. The urgent pressures of history and not to be undone by the inaction of the bureaucracy. Further Sri Ramaswamy also laid enphsis on the recent amendment to the Land Aquisition Act by the State of Andhra Pradesh by Art. 22 of 1977 which gave powers to the Collector to make a notification for acquisition under Section 4 (1) of the Act, and also en bling him to make the publication in the District Gazette instead of the official Gaztte of the State and also provisions of the Act delegating the powers to the Collector by the Government invoking the urgency clause under Sec. 17 of the Act. According to him, the Amending Act and the subsequent G. Os. making budgetary provisions clearly indicate the urgency of acquiring house sites and the provisions of the Act must be interpreted in order to advance the cause of the landless community of scheduled tribes and scheduled castes in our State.

147. We must say that none of the petitioners questioned the Amending Act or any provision intended to benefit the community of the Scheduled Castes and Scheduled Tribes or the Government policies embodied in the several G. Os. In fact this is not a class action where the interests of one community which is historically suppressed and which requires the special protection justifying the State action in the light of directive principles referred to above. The individual action of the statutory authority alone is questioned in these cases. In fact the petitioners are complaining about the abuse or excess of powers by the Statutory Authorities. We are concerned in this case with the statutory limitations, and the bounds and not that whether the legislative sanction or State policy is itself excessive or opposed to the rights guaranteed to the petitioners and in which event the court has to consider the balance between the fundamental rights and the directive principles. Once a power is given under a Statute there cannot be two types of exercising that power and one benevolent and another strict. The statutory authority must exercise that power reasonably, bonafide and without negligence and the said authority cannot justify the excess or abuse of power by showing that the object of the exercise of the power is to advance the cause of the socially depressed class like scheduled castes and scheduled tribes. Hence we are concerned in this case with the true construction of the provisions of the Act and whether there is an excess or abuse of the statutory power and consequently the provisions of the Act must strictly be construed in favour of the petitioner as their rights are violated.

148. Sri Ramaswamy further contended that the right to property is no longer a fundamental right after the 44th Amendment of the Constitution and hence the rule of interpretation indicated by the Supreme Court in respect of the proceedings of the Land Acquisition Act may not apply any longer. We are afraid, we cannot accept the said contention. Even in a countary like England the said construction was accepted even though Page: 305right to property is not declared as a fundamental right by any constitutional provision like ours. Further under Art. 300-A of the Constitution, a citizen has a constitutional right whereunder the constitutional mandate is, that no person shall be deprived of his property save by authority of law. The mandate runs both against the executive action and also against legislative action as the law must be a valid law. Any deprivation of property by excess or abuse of statutory power is also hit by Art. 300-A.

Scheme of the acquisition under the Act.

149. Sri S. Venkata Reddy took us through various provisions of the Act for the purpose of our debate. It is necessary before we answer the questions raised that we should examine the scheme of the Act in its various stages of acquisition, culminating in taking possession of the property.

150. The first stage is Secs. 4 and 5 which is the foundation for the acquisition and the purpose of the Notification under Sec. 4 is to carry on preliminary investigation with a view to finding out after necessary survey and taking of levels, and, if necessary, digging or boring into the subsoil whether the land was adopted for the purpose for which it was sought to be acquired. Such power is given under Sub-sec. (2) of Sec. 4. The Notification under sub-sec. (1) will have to be published in the Official Gazette and the substance of the same shall be notified in the locality. The second stage is hearing of the objections under Sec. 5-A. Rule 1 of the Rules made under the Act of Andhra Pradesh provides for individual notice to be issued to the owners of property. The third stage is the notification under sec. 6 after marking the lands measuring and planning. This covers the work contemplated under secs. 6 to 10 of the Act. The fourth stage is passing award after making the necessary enquiry. This covers the work contemplated under Secs. 11 to 15 of the Act. The final stage is taking possession under Sec. 16 and whereby the property will vest in the Government free of all encumbrances. These five steps show the normal mode of taking possession under the provisions of the Act.

151. Let us examine the special powers of taking possession in case of urgency. Before sub-sec. (4) is introduced by the Amending Act 38 of 1923, the authorities are empowered to take possession in case of urgency after fifteen days notice as contemplated under Sec. 9 (1) of the Act in respect of waste and arable lands even before the award is passed. Similarly in case of other lands where a specific urgency exists as contemplated under sub-sec. (2) the Collector can take immediate possesssion with the approval of the Government before the award is passed. Sub-section (1) is the case of a general urgency and sub-section (2) is a specific urgency, where the nature of urgency was enumerated.

152. Sub-sec s. 4 to Sec. 17 and Sec. 5-A were inserted by the same Amending Act 38 of 1923. As per the said provision of sub-sec. (4) Page: 306the authority is empowered to dispense with even the enquiry under sec. 5-A avoding the delay of thirty days also. Thus, it can be seen there are two time consuming stages, one at 5-A enquiry and other at the award enquiry under sec. 11. Even before the Amending Act 1923, the possession can be taken before the award is passed and after 1923 when sub-sec. 4 to sec. 17 is introduced the possession can be taken even before the enquiry under sec. 5-A. It is pertinent to note at this stage that sec. 17 (1) does not indicate the nature of urgency but mentions about the nature of the land in respect of which the urgency clause can be applied viz. waste or arable land. On the other hand, sub-section (2) empowers to invoke the urgency clause in respect of any land but the nature of urgency was defined such as any sudden change in the channel of any navigable river or other unforseen emergency to acquire the immediate possession of the land by any Railway Administration. Thus when the emergency is such that does not brook even thirty days delay apart from the delay at the award stage the authority can dispense with even 5-A enquiry and issue sec. 6 notification. In normal course sec. 6 notification can be issued only after 5-A enquiry “is held. Thus sec. 17 (4) accelerates the proceedings and the delay at both the stages of 5-A and sec. 11 enquiry is being avoided enabling the authorities to take possession after issuing fifteen days notice or immediately as the case may be.

153. Further the power given to the Government under Sec. 17 (4) to dispense with the enquiry under Sec. 5-A of the Act is delegated to the Collector under Sec. 3-A of the Amending Act 22 of 1976 in the State of Andhra Pradesh by issuing a separate notification.

154. Though it is fully and fairly settled that the application of the urgency clause is justiciable the learned counsel for the petitioners debated at length the nature of the powers exercisable by the authorities in particular with reference to the Madras Amendment.

Invoking urgency clause - Justiciability.

155. It is fairly settled by the judgments of the Supreme Court themselves regarding the nature of this power under Sec. 17 (4) and the justiciability thereof, in Raja Anand v. State of U.P AIR 1967 SC 1081 at page 1085 Their Lordships of the Supreme Court ruled that “the opinion of the State Government which is a condition for the exercise of the power under S. 17 (4) of the Act, Is Subjective and a Court Cannot Normally Enquire Whether there were Sufficient Grounds of Justification of the opinion Formed by the State Government under Section 17 (4), (Emphasis supplied[………………………………But even though the power of the State Government has been formulated under Section 17 (4) of the Act in subjective terms the expression of opinion of the State Government can be challenged as ultra vires in a court of law if it could be shown that the State Government never applied its mind to the matter or that the action of the State Government is mala fide.” In Manzoor… v. State Of U.P…. AIR 1973 SC 2548 at page 2551 it is again Page: 307emphasised that “the question whether there is an urgency or not is left to the discretion and decision of the appropriate Government. In Jage Ram v. State of Haryana AIR 1971 SC 1033 at page 1035 again the same Court ruled that ‘the conclusion of the Government in a given case that there was urgency is entitled to weight, if not conclusive.” In Narayana v. State of Maharashtra AIR 1977 SC 183 the Supreme Court laid down what they called the basic test in these matters. At page 186 it was stated: “That test basically is: was the authority concerned acting within the scope of its powers or in the sphere where its opinion and declaration must be permitted to have full play ? Once the court comes to the conclusion that the authority concerned was acting within the scope of its powers and had some material, however meagre, on which it could reasonably base its opinion, the Courts should not and will not interfere. There might, however, be cases in which the power is exercised in such an obviously arbitrary or perverse fashion, without regard to the actual and undeniable facts, or, in other words, so unreasonably as to leave no doubt whatsoever in the mind of a Court that there has been an excess of power. There may also be cases where the mind of the authority concerned has not been applied at all, due to misunderstanding of the law or some other reason, to what was legally imperative for it to consider.” This judgment also laid down the rule of burden of proof when the Government invoked the urgency clause and dispensed with the enquiry. Their Lordships held that an order or notification containing a recital technically on the face of it raises a presumption of fact under Sec. 114 Illustration (e) of the Evidence Act. This presumption is one of fact and it is an optional presumption and it can be displaced by the circumstances indicating that the power lodged in the authority has not been exercised in accordance with law.

156. It is pertinent to note at this juncture that a Full Bench of this Court laid down five tests to find out when the subjective opinion or satisfaction of the executive action taken under Sec. 17 (4) can be judicially reviewed. Firstly, to find the existence and circumstances under which the Government formed its opinion. Secondly, the Court can enquire the reasonable nexus between the circumstances and the purpose for which the power is exercised. Thirdly, the Court can see whether the power has been misapplied or misinterpreted. Fourthly, to examine whether the power is exercised for improper purpose. Fifthly, whether relevant grounds were taken or whether extraneous grounds were taken in exercising the power and whether the authorities bestowed their mind at all to form their opinion. According to me these principles laid down by Supreme Court and this Court are wide enough to correct any excess or abuse of power.

Madras Amendment

157. It is convenient to notice the Madras Amendment Act 21 of 1948 as adopted in Andhra Pradesh. The full text of the Madras amendment runs as follows:—

Land Acquisition (Madras Amendment) Act XXI of 1948, Section 2 (4-1-1949).

In its application to the whole of the State of Madras, in Section 17—

(a) To sub-section (1), the following Explanation shall be added, namely,—

Explanation This sub-section shall apply to any waste or arable land, not withstanding the existence thereon of scattered trees or temporary structures such as huts, pendals or sheds.”

(b) for the first paragraph of sub-section (2), substitute the following, namely,—

(2) In the following cases that is to say—

(a) Whenever, owing to any sudden change in the channel of any navigable river or other unforseen emergency, it becomes necessary for any Railway Administration to acquire the immediate possession of any land for the maintenance of their traffic or for the purpose of making thereon a riverside or ghat station, or of providing a convenient connection with or access to any such station.

(b) Whenever in the opinion of the Collector it becomes necessary to acquire the immediate possession of any land—

(i) for the purpose of any library or educational institution, or

(ii) for the construction, extension or improvement of—

(A) Any building or other structure in any village for the common use of the inhabitants of such village, or

(B) Any godown for any society registered or deemed to be registered under the Madras Cooperative Societies Act, 1932, or

(C) Any dwelling-house for the poor, or

(D) Any irrigation tank, irrigation or drainage channel or any well, or

(E) any road,

the Collector may, immediately after the publication of the notice mentioned in sub-section (1) and with the previous sanction of the appropriate Government, enter upon and take possession of such land, which shall thereupon vest absolutely in the Government free from all encumbrances.”

158. It is argued by the learned counsel for the State that in view of this amendment to sub-section 2 of Section 17 the power exercised by the authority cannot be questioned as the Legislature itself has declared under this clause of 2 (b) (ii) (c) as one of specific urgency and the possession can be taken by the Collector immediately. Sri Subhashan Reddy drew Page: 309our attention to an earlier judgment of the Madras High Court in Padayachi v. State of Madras AIR 1952 Madras 756 where a contention raised by the petitioner's council that the amended section gave an exhaustive list for all public purposes was negatived by the Court. However, this contention that a different degree of standard of judicial review at least should apply in view of the legislative declaration that acquisition of land for the construction of any dwelling house for the poor is a specific urgency was not raised. Such contention was raised and considered by two Division Bench Judgments of this Court. In Writ Petition No. 109/1959 Jaganmohan Reddy, Chief Justice and Parthasarathi, J., held answering the said contention that in view of the amendment it is not open to challenge on the ground that in fact an urgency does not exist, that “the opinion formed by the State Government as to the existence of urgency is not a matter that can fairly be tested from general objective standards; and the subjective satisfaction of the Government is not open to attack in these grounds like mala fides which vitiate or nullify an administrative action.” In a later Bench judgment in Writ Petition No. 5042/1978 consisting of Madhava Reddy, J., (as he then was) and Jeevan Reddy, J., it was held that sub-section 2 as amended by the Madras amendment gives legislative recognition to the fact that provision of house sites to the poof is an inherently urgent one and in such a case the only opinion that is to be formed by the appropriate authority is that it is necessary to take immediate passession of the land and once that opinion is formed the power under Sec. 17(4) can be invoked and the enquiry under Sec. 5-A dispensed with. Their Lordships further ruled that the Madras amendment has placed the provision of dwelling houses to the poor on the same par as the sudden change of the course of a navigable river or other unforseen emergency and hence in case of acquisition of land for providing house sites to poor the invocation of power and sec. 17 (4) to dispense with the enquiry under sec. 5-A would ordinarily be unquestionable. Jeevan Reddy, J., who delivered the judgment on behalf of the Bench subsequently reiterated the said legal position in S. Parthasarathi v. Government of A.P 1981 (2) APLJ 106 Having compared the difference in language between subsecs. 1 and 2 of sec. 17 vizi., sub-sec (1) employs the words “In case of urgency” whereas sub-sec. (2) specifies certain purposes, he emphasised the earlier view expressed by him that, “It should be obvious that where the purpose of acquisition is one of these mentioned in sub-section (2), the Court while scrutinizing the validity of the exercise of power under subsection (4), should keep in mind the fact that the Legislature has recognised these purposes as inherently and specially urgent. To put it differently not only has the Court to keep in mind that the satisfaction is subjective on the part of the Government, but it must also have regard to the additional circumstance that the purpose of acquisition is one recognised by the legislature itself as inherently urgent.” I respectfully agree with this dicta as it correctly sums up the true effect of the amendment to sub-sec. (2). This Page: 310view was again accepted by Gangadhara Rao, J., in P. Punnaiah v. District Collector, Kakinada AIR 1982 AP 33 holding that “the very fact that the Legislature has thought it fit to treat the acquisition of the land for the construction, extension or improvement of any dwelling houses for the poor on the same footing, as the other purposes mentioned in sub-sec. (2) shows that the Legislature has recognised that acquisition of land for the dwelling houses for the poor is also urgent. In other words, urgency is implicit in the section itself.” Gangadhara Rao J., Sitting with Jeevan Reddy, J., again reiterated the view in the latest judgment Chenchamma v. Dt. Collector, Nellore 1982 (2) ALT 14

159. While comparing sub-secs. 1 and 2 as they originally stood in the Central Act it was held by the Supreme Court in Narayana v. State of Maharashtra AIR 1977 SC 183 that Section 17(2) deals with a case in which an enquiry under Section 5-A of the Act could not possibly serve any useful purpose. They were dealing with a case arising under sub-sec. (1) of Sec. 17. No doubt sub-sec. (2) deals with cases apparently appear to be urgent such as the sudden change of a course of river which leave no option if essential communications have to be maintained but when the legislature in its wisdom puts a specific urgency on par with those categories mentioned in sub-secs. 1 and 2 the Court is bound to give effect to the true effect of that amendment. Similar view was taken in Kailashwathi v. State AIR 1978 Allahabad 181 where the State amendment introduced 1-A of Sec. 17 enlarging the emergency clause to be invoked in respect of sanitary improvements of any kind or planned developments justifying the invocations of emergency power in respect of planned development. Their Lordships while applying the principle enunciated in Narayana v. State of Maharashtra 1981 (2) APLJ 93 held that it would not be correct, in our opinion, to say that the Supreme Court laid down exhaustively the list of cases where alone such a power could be exercised. The example taken was only illustrative. Hence the invocation of emergency power for constructing a godown was justified. In these cases of specific urgency declared by Legislature it must be noted that the judicial review was not denied and cannot be denied but the degree of judicial review has varied. As held by one of us P.A Choudary, J., that the words ‘in the opinion of the Collector’ occurring in the Madras Amendment do not mean that the Collector thought fit (vide K. Radhakrishna Reddy v. Dt. Collector, Nellore 1981 (2) APLJ 93 and hence it is clear when the formation of the opinion by the authority under section 17 (4) is questioned, the authority has to produce the material upon which it formed satisfaction to satisfy the court that there was some material upon which it could have found the requisite satisfaction. However it may be noted that as laid down by the Supreme Court in Narayana v. State of Maharashtra while invoking the power under Sec. 17 the mind of the Officer or the authority concerned has to be applied Page: 311to the question where there was an urgency and the need to dispense with the enquiry. It is not just the existence of an urgency but the need to dispense with the enquiry under Sec. 5-A which has to be considered, that is, both the elements must be proved. So according to me, the Madras Amendment has, by specific enumeration of this item under clause(c) declared as one of urgency in respect of which the power can be invoked so that the authority need not prove the existence of urgency but its discretion to dispense with 5-A enquiry can still be subject matter of judicial review so long the Sec. 174] is not amended dispensing with sec. 5-A enquiry in these matters automatically without leaving any statutory discretion in the authority. Hence once the acquisition of a land for the construction of a dwelling house for the poor is one of specific urgency the other element of need for dispensing with the enquiry alone has to be examined by the authority and hence in view of this amendment an enhanced degree of subjectivity prevails and the court cannot normally enquire into the exercise of that power unless it is shown to be mala fide action or a case of total non-application of the mind by the authorities.

160. It was further argued that clause (b) which states that “whenever in the opinion of the Collector it becomes necessary to acquire the immediate possession of any land” pre-supposes an urgency that springs out which was not in existence previously, such as an event of a tempest or a fire accident which enjoins the authority to take immediate steps for constructing dwelling house to the poor. I think that such construction is not warranted in view of the problem of this class of people where the State must meet the challenge on a war footing. Whenever it is found or discovered that in a village or at any place there are poor persons without dwelling houses, that itself constitutes a specific urgency as declared by the Legislature warranting an immediate action for providing dwelling houses.

161. Further, the counsel for the petitioners argued that clause (c) applies only when the Government wants to construct a house for the poor but not when a house site was given to the poor for constructing dwelling houses by themselves. We are afraid we cannot restrict the operation of the said provision by such narrow construction. The acquisition of a land for construction of a dwelling house either by the State or by the poor people themselves, is itself undoubtedly an acquisition of a dwelling house for the poor and we have no hesitation to reject the said contention.

162. Sri Subhashan Reddy further raised a contention that the Madras amending Act has no application to Telangana area as Act 22 of 1959 under S. 3 extended the Central Act I of 1894 only as it stood unamended by the Madras amendment. The said contention is not correct. The provisions of the Amending Act disclose that the Central Act was made applicable to Telangana area (transferred territories) with all its amendments then in force in Andhra area and hence this contention fails.

163. Now let us answer the main question squarely i.e whether the subsequent delay in taking possession vitiates the land acquisition Page: 312proceedings when power under Sec. 17 (4) is invoked dispensing with the enquiry under Sec. 5-A of the Act. According to me this question was directly answered by the Supreme Court in Babu Singh v. Union of India AIR 1979 SC 1713 and the matter is no longer res integra.

164. So far as this court is concerned in an earliest judgment reported in S. Apparao v. Spl Land Acquisition Officer 1969 (2) An WR 282 a Division Bench consisting of Jaganmohan Reddy, C.J and Gopal Rao Ekbote, J. held that “the long and inordinate delay in making the enquiry and passing the award and between the publication of the section 6 notification and the notice under Sections 9 and 10 ordinarily would justify the court striking down the proceedings in the award.” But that was a case where S. 5-A enquiry was held and the proceedings were sustained as the delay was satisfactorily explained and there was delay on the part of the petitioners also in invoking the jurisdiction of the court. A Division Bench consisting of Obul Reddy and Madhava Reddy JJ., held in Writ Appeal No. 236/66 dated 3-10-69 that the inordinate delay of four years in taking possession after dispensing with the enquiry under sec. 5-A was held to be fatal and consequently the authorities were directed to make enquiry under S. 5-A In K. Yanadi Reddy v. State of A.P 1973 (2) APLJ 408 Alladi Kuppuswami, J., held that the proceedings are vitiated when S. 4 notification was issued on 19-6-1971 dispensing with the enquiry under Sec. 5-A and S. 6 declaration was given on 30-12-1971 as they would clearly disclose the absence of urgency. A similar view was taken by Ramchandra Rao J. sitting single in G. Adinarayana v. State of A.P 1974 (2) An WR x 357 where the notification was issued on 7-10-1971 dispensing with the enquiry and notice under Sec. 9 was issued for taking possession on 1—12—1972. No doubt in the said case there was an additional infirmity of not publishing the notification in the locality. In Kasireddi Papaiah v. State AIR 1975 AP 269 Chinnpppa Reddy, J., as a Judge of this court held that the delay on the part of tardy Officials to take further action in the matter is not sufficient to nullify the urgency which existed at the time of the issue of the notification though it may be a relevant circumstance to be taken into consideration in deciding whether there was any urgency at all or whether the emergency provision was invoked without the Government applying its mind in the circumstances of the case. There the decision of the Government was taken on 19-5-1970 to acquire land and Sec. 4 (1) notification was published on 24-9-1970 and sec. 6 notification was published on 25-2-1971. No steps were taken to take possession of the land and the learned judge holding that the emergency power was rightly invoked, dismissed the writ petition. In writ petition No. 750/75 dated 31-8-76 where sec. 4(1) notification was issued on 16-12-71 and sec. 6 declaration was published on 12-9-74 roughly three years later—after dispensing with 5-A enquiry Jeevan Reddy, J., held following the decision in Kasireddi Papaiah v. State, the judgment of Chinnappa Reddy, J., that the subsequent Page: 313delay is not fatal to the-proceedings. In Writ Appeal No. 370/1976 dated 20-9-1976 where notification was issued on 3-7-1972 and sec. 6 notification was issued on 21-12-72 and award was passed on 4-10-74 the Bench consisting of Sambasiva Rao and Punnayya, JJ., held that if an urgency exists on the date of notification the subsequent delay would not detract from the purpose that prompted the acquisition. Both Jeevan Reddy, J., and the Division Bench referred to above relied on in their judgment, the judgment of the Supreme Court in Jage Rama v. State of Haryana AIR 1971 SC 1033 which held that where the acquisition proceedings were mooted earlier, the delay in issuing notification under sec. 4(1) is not fatal. A similar view was taken by Gangadhara Rao, J., in T. Vanamulu v. Govt. of A.P 1977 (1) An WR 248 holding that the urgcncy of the acquisition must be determined with reference to the date on which the notification was issued but not with reference to the anterior delay. In that case draft declaration proposals were submitted in 1971 and actual notification under Sec. 4(1) was issued on 17-12-1975 dispensing with 5-A enquiry. Again a Division Bench consisting of Krishna Rao and Punnayya, JJ., in N. Ramanna v. The Collector, West Godavari 1977 (2) APLJ 289 held that the subsequent delay ipso facto does not vitiate the direction dispensing with Sec. 5-A enquiry and the fact that subsequently the concerned officers did not take further action by invoking the other provisions of the Act would not have the effect of rendering the dispensing with Sec. 5-A enquiry illegal and void. A division Bench consisting of Raghuvir and Narsinga Rao, JJ., in Writ Petition No. 1471/77 dt. 6-10-1978 quashed the S. 6 notification and directed fresh enquiry under S. 5-A as the delay was proved to be unjustified in dispensing with the enquiry under sec. 5-A. In that case the notification under S. 4(1) was published in the gazette on 8-7-71 and the same was proclaimed in the locality on 10-8-71 and sec. 6 notification was issued on 10-2-72 and hence section 6 notification was quashed, and the authorities are directed to hold 5-A enquiry. Further in S. Anjuman Ahmidiyya Muslim Mission v. State AIR 1980 AP 246 a Division Bench consisting of Alladi Kuppuswami J., (as he then was) and Punnayya, J., sustained the land acquisition proceedings even though there is an enormous delay of eight years on the ground that the proceedings were stayed twice by the High Court when writ petitions were filed & stay was obtained. In CH. Suryanarayana Reddy v. Government of A.P 1982 (2) ALT 55 = 1982 (2) APLJ 95 a Division Bench consisting of Madhava Reddy, A.C.J, and P.A Choudary, J. (one of us) reviewed all these cases and held that the enormous delay in taking possession is fatal to the proceedings as in that case sec. 4 notification was issued on 7-10-78 and published in the locality on 17-11-78 and Sec. 6 notification was not at all issued and no steps were taken for obtaining possession under the instructions of the Government that the Government may obtain surplus land under the Agricultural Ceiling Act, and hence the proceeding were Page: 314delayed and under those circumstances the proceedings were quashed by the learned single Judge and the same was affirmed by the Bench. In the said judgment a distinction was made between the delay that occurred prior to the issuing of Sec. 4 (1) notification and the delay subsequent thereto. Accor ding to the said judgment the delay prior to the issuing of notification under Sec. 4(1) may not be fatal on the reasoning of Jage Ram v. State of Haryana AIR 1971 SC 1033 but the subsequent delay may vitiate on the strength of the decision in Babu Singh v. Union of India AIR 1979 SC 1713 According to me the view of the Division Bench reported in Ch Suryanaryana Reddy rs. Government of A.P 1982 (2) ALT 55 = 1982 (2) APLJ 95 that the delay prior to the iss.ing of Notification is not fatal is correct and well founded on the strength of the judgment of the Supreme Court Jage Ram v. State of Haryana. AIR 1971 SC 1033

165. It is pertinent to note the remark of Krishna Ayyar. J. in State of Punjab v. Gurdial Singh AIR 1980 SC 319 that “It is fundamental that compulsory taking of a man's property is a serious matter and the smaller the man the more serious the matter. Hearing him before depriving him is both reasonable and pre-emptive of arbitrariness and denial of this administrative fairness is constitutional anathema cxcept for good reasons. Save in real urgency where public interest does not brook even the minimum time needed to give a hearing land acquisition authorities should not, having regard to Arts. 14 and 19 burke an enquiry under Section 17 of the Act.’ It is unfair and unjust to deprive a citizen the substantive right of hearing him before depriving him of the property when there is no urgent need. It is relevant to note in this connection that the Amending Act 13 of 1967 imposed an upper limit of three years for issuing declaration under Sec. 6 and hence when Sec. 5-A enquiry was not dispensed with the declaration under Sec. 6 can be given before the expiry of of three years from the date of the publication of Sec. 4 (1) notification. I must make it clear that we are not concerned in this enquiry where there is delay in passing the award when the enquiry under Sec. 5-A was not dispensed with. In those cases if the acquisition proceedings are unduly delayed the payment of compensation with reference to the date of publication of 4 (1) notification is unjust and not within the contemplation of the provisions of the Act. In P. Appalamurthy v. State of A.P 1931 (2) APLJ 84 Jeevan Reddy J. quashad the proceedings when there is an unreasonable delay in passing the awards of nearly ten years though Sec. 5-A enquiry was held in those cases. He took the view that if the land acquisition authorities are allowed to issue notifiction under Sec. 4 (1) and wait for ten years to pass the award and p.iy??? the compensation, then what is ultimately paid to the owner would hardly represent a reasonable and fair compensation and consequently the proceedings were vitiated. In fact one of us PA. Choudary J. held that the words “at the date of the publication of the Notification under Sec. 4 (1)” occurring in Sec. 23 (1) of the Land Acquisition Act is void and unconsti- t jtion; 1 as it offends Second Proviso to Art. 31-A of the Constitution while Page: 315examining the undue delay in passing the award paying the compensation with reference to the notified date (Vide S. Suryanarayana v. State of A.P 1982 (1) An WR 315 though the said view expressed in the above two cases is being canvassed in appeals. To that line of cases belongs the judgment of the Supreme Court in Ambalal v. Ahmedabad Minicipality AIR 1968 SC 1223 where Their Lordships held that the Government after issuing secs 4 and 6 notifications is not justified in allowing the matters to drift and take in hand the proceedings for assessment of compensation whenever they thought it proper to do so. It was further held by the Supreme Court that it could be said that in such cases where notification was not for bona fide purpose of acquisition but with the object of pegging down the prices so that the land might when needed, be obtained at those rates in futare and in such cases the aggrieved party can file a writ petition and compel the Government to complete the assessment for payment of compensation.

166. Now the question before us is whether the authorities are justified having burked the enquiry under Sec. 5-A taking their own time either for publishing the notification in the locality or making the declaration under Sec. 6 or taking possession In Babu Singh v. Union of India AIR 1979 SC 1713 the very same contention was raised viz. that even though the Government invoked powers under Sec. 17 claiming that in view of the emergency, the urgency clause must be applied and thereby deprived the appellants of their statutory right to put forth the objection against the proposed acquisition, yet the Government did not take possession of the land for a period of six years and on that account the acquisition itself must be declared illegal and invalid. The said contention was rejected by the Supreme Court holding that “if the impugned notifications are valid and the declaration made under Sec. 6 has become final and an award under Sec. 12 is made even if possession is not taken, we fail to appreciate how thereby the notification under Sec. 6 would become invalid. It may be that after invoking the power under Sec. 17 proceedings for acquisition dragged on and possession is not taken it may reflect upon the exercise of power under See. 17. It may indicate that there was no urgency and there is colourable exercise of power. That is not the contention.” Thus the Supreme Court clearly ruled that the delay by itself would not be fatal unless it is shown to be colourable exercise of the power or else would not a delay of six years in that case befatal? No doubt they laid down that the delay may reflect upon the exercise of power. Hence I am clearly of the opinion that the delay ipso facto is not fatal and the court cannot declare that the proceedings are void by the subsequent delay alone. If a contention is raised that the original power dispensing with the enquiry itself is mala fide or at least not bona fide and that it is a colourable exercise of the power the delay in such situation will lend support to the contention of the petitioners. The court on examination of the circumstances of the case and taking into account the subsequent long delay which is unusual in a case Page: 316of real urgency, may be justfied in quashing the proceedings. In Other words the delay by itself would not vitiate the proceedings and it may be a very valuable piece of evidence to come to the conclusion that the original exercise of the power itself is not bona fide and liable to be set aside. The authorities may be able to show that the subsequent delay is disassociated from the original urgency which was well founded and in such event the court cannot interdict the proceedings. Suppose the authorities allowed two months time to avoid hardship on the part of the owners of the land to harvest a crop which is existing on the land if mere delay by itself is fatal the grace shown by the authorities also shall be construed as fatal to the procceedings. Similarly if a grant in a Budget for acquiring, the land for homeless poor has lapsed and authorities may have to wait for a couple of months for a new budget to secure a fresh grant such circumstances cannot be construed against the exercise of the statutory power being unreasonable and perverse. These circumstances would show that the delay by itself should not be construed as decisive. However longer the delay the greater the burden on the authorities to prove that the subsequent delay is disassociated from the original exercise of the power. Farther if the authorities failed to place before the court the necessary material to justify the exercise of the power, the subsequent delay may prove fatal and the court may even draw an adverse inference. Hence I answer the question in the negative holding that the subsequent delay in taking possession by itself would not vitiate the proceedings and it can be shown that the subsequent delay is disassociated from the original exercise of the power and the greater the delay the greater the burden on the authorities to sustain the proceedings as the delay would certainly reflect upon the original exercise of the power as a very valuable and compelling piece of evidence in support of the contention that the original power itself was not exercised bona fide.

167. Regarding the second question referred viz, whether the publication of the substance of the notification in the locality under Sec. 4 (1) of the Land Acquisition Act should be made simultaneously or at any time, we have to consider three judgments of the Supreme Court in the first instance where the requirements of publishing the substance of the notification in the locality was held to be mandatory.

168. Khub Chand v. State of Rajasthan AIR 1967 SC 1074 is a case where admittedly no publication of the substance of the notification in the locality was made, However it was contended by the State that the said provision of publication in the locality is only directory. That case arose in the State ofRajasthan where there is amendment to Sec. 5 which (enjoins the authorities to make another notification under Sec. 5 (2) after survey under Sec. 4 (2) before Sec. 6 notification, Even then it was held by Subbarao, Chief Justice that the publication of substance of notification is mandatory. Unless that is done the entry by the Officer under Sec, 4 (2) will become unlawful. It was further ruled, the fact that the owner may have notice of the Page: 317particulars of the intended acquisition under Sec. 5 (2) of Rajasthan Act, does not serve the purpose of Sec. 4, and the court held that the provision is mandatory and the notification without complying with the provision of local publication would be void and the land acquisition proceedings taken pursuant thereto would be equally void,

169. The next case is State Of Mysore v. Abdul Razak Sahib AIR 1973 SC 2361 dated 11-8-1972, where the enquiry under Sec. 5-A was not dispensed with but Sec. 4 (1) notification was issued on 17-8-1961 and the publication of the substance in the locality was made on 1-11-1961 and 9-11-1961 i. e. nearly after a lapse of ten weeks and objections were filed on 4-12-1961. Their Lordships held that in the absence of publication in the locality the interested persons may not be able to file their objections about the acquisition proceedings and they will be deprived of the right of representations which is a very valuable right and objections filed after 30 days need not be considered. They accept the view of the Mysore High Court in Gangadharaiah v. State of Mysore2 that both the publication in the gaztte and in the locality must be fulfilled. Subsequently in Narinderjit Singh v. State of U.P AIR 1973 SC 552 dated 24-10-1972 referred the earlier cases Khub Chand v. State of Rajasthan AIR 1967 SC 1074 and State Of Mysore v. Abdul Razak Sahib referred to above and held that the publication of the substance of the notification in the locality is mandatory. In that case admittedly there is no publication at all & it was a case where sec. 5-A enquiry was dispened with. Sec. 4(1) Notification was made on 15-10-1960 and sec. 6 notification was made on 28-10-1960. The contention that once 5-A enquiry was dispensed with, the publication in the locality of the substance of the notification is wholly unnecessary was negatived holding that “the provistons 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 Sec. 17 (4) the appropriate Government direcets that the provisions of Sec. 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)……………In our opinion Section 4 (1) has to be read as an integrated provision which contains two conditions: the first is that the notification in the official gazette must be published and the second is that the Collector has to cause public notice of the substance of such notification to be given. Page: 318Those two conditions must be satisfied for the purpose of compliance with the provisions of sections 4 (1)”. Thus it is clear with both the publication of notification in the gazetae and the publication of the substance of the notification in the locality are mandatory. Both these conditions must be fulfilled even in cases where sec, 5-A enquiry was dispensed with. Any objections filed beyond 30 days need not be considered. So far there is no controversy before us. However the controversy is whether the publication of the substance of the notification mast be done simultaneously along with the publication of the notification in the gazette under Sec. 4 (1) as observed by the Supreme Court in Narinderjit Singh v. State of U.P failing which the notification becomes vcid. This court by a long line of cases took the view that both the conditions are mandatory and the simultaneous publication is not a condition precedent and the publication of the substance of the notification can be made within a reasonable time.

170. It is clear that the object of the insistence of the publication of the substance of the notification in the locality is that the owner of the land whose land was sought to be acquired shall not be deprived of right to file objections. It was held in categorical terms in State Of Mysore v. Abdul Razak Sahib at page 2362 that, “the publication of the notice in the locality is a mandatory requirement. It has an important purpose behind it. In the absence of such publication the interested persons may not be able to file their objections about the acquisition proceedings and they will be deprived of the right of representation provided under S. 5A. which is very valuable right.” The reason for holding that this provision is mandatary is two fold. (1) The publication of the substance of the notification in the gazette is a condition precedent for talking further steps in the land acquisition proceedings or else any entry by the authorities will become unlawful. That was why the Supreme Court laid stress in the first case as Sec. 4 (2) makes the entry by the officer lawful only the fulfilment of both the conditions and this was the reason for holding that even in cases where sec, 5-A enquiry was dispensed with both the conditions of publication in the gazette and publication in the locality have to be fulfilled. The second reasoning is that the person who is entitled to file objections under Sec. 5-A will be deprived of his substantive and valuable right as the time has to be computed under see. 5-A from the date of the issue of the notification in the guzette. If thirty days have to be computed from the date of notification every days's delay will deprive the citizen of the right to file the objections and the time given to him under the said provision will be curtailed and that was why the Supreme Court rightly emphasised the need for fulfilling both the conditions of see. 4 (1) simultaneously with the publication of the notification in the gazette, so that the citizen will not be deprived of his full period of thirty days. No doubt the earlier judgments of this court do not focus sufficient attention on the question of the deprivation of the citizen of his valuable right of filing objections within thirty days. Let us examine these cases chronologically.

171. In T. Vanamulu v. Govt. of A.P 1977 (I) An WR 248 Gangadhara Rao J held that the publication of the substancs of the notification in the locality should be given as early as possible after the notification was published in the offiicial Gazette and that whether the delay in such cases is fatal and whether it has caused any prejudice to the party, has to be decided on the facts of each case. In that case the delay is only three days in publishing the substance of the notification in the locality. This case was relied upon and accepted as laying down the correct proposition of law by a Bench in N. Ramanna v. The Collector, West Godavari. 1977 (2) APLJ 289 In that case a bench of this Court consisting of A.V Krishna Rao and Punnayya, JJ held that “having regard to the practice obtaining admittedly in the State of Andhra Pradesh, it is possible to state that the notification in the Official Gazette can be accompanied by the Public Notice to be issued by the Collector.” They held that the decision of the Supreme Court amounts to saying that the public Notice that ha? to be caused to be issued by the authorities shall follow the notification in the Gazette as soon as possible, in other words, within a reasonable time and in the very nature of things, requiring the publication of the notification in the Official Gazette and the publication of the substance of the notification in the locality simultaneously tantamount to requiring the authorities to do an impossible act. In M. Venkata Subbareddi v. Dt. Collector. 1978 (2) An WR 185 Alladi Kuppuswami, J., (as he then was) negatived the contention of the State that the non-publication of the Substance of the notification in the locality is not fatal eventhough the owner has filed objections and it was considered before sec. 6 notification was issued. But it is a case of total want of publication. Similarly a Division Bench consisting of Ramachandra Rao, J., and punnayya, J., in Raghava Reddy v. State of A.P4 set a side the procedings under the Land Acquisition Act as there was no publication of the substance of the notification in the locality. They have noticed for the first time the rule I of the rules framed under Sec. 55 of the Act and held “this Rule makes it abundently clear that immediately after the publication of the notification under Sec. 4 (1) of the Act in the gazette the Collector shall issue a notice to the parties interested and also have the said notice published at convenient places in the locality’, In G. Bheemappa v. State of A.P, 1979 (2) APLJ 253 Kuppuswani, J., (as he then was) and Ramachandra Raju J. held that when the notification was published in the Gazatte on 20-7-1978 but the substance of the same was published in the locality on 16-1-1979 with six months delay the proceedings were vitiated. They construed Rule 1 of the Rules made under S. 55 of the Land Acquisition Act as enjoining the authorities to publish the substance of the notification immediately after the publication of the notification in the gazette. It was pointed out that there may be circumstances where it is impossible to publish the notification in the village imme- diately (in the sense forthwith.) after the notification was published in the gazette In Anjuman Ahmediyya Muslim., Mission v. Stated AIR 1980 AP 246 Alladi Page: 320Kuppuswami, J., (as he then was) and Punnavya J., following the above judgmtent sustained the notification eventhough there is a delay of two and half months in publishing the notification in the gazette as the notification was published on 25-3-71 in the gazette and the publication in the locality was made on 11- 6-71. It was pointed out that the notification could not be published immediately in the locality in view of the N.G.O.s’ strike and the said explanation was accepted by the Bench. Another judgment of the Bench consisting of Alladi Kuppuswami. J., (as he then was) and Jeevan Reddy J., reported in I. Umamaheswara Rao v. State of A.P 1981 (1) An WR 11 sustained the proceedings eventhough there is a delay of one-month and twenty six days as the notification was published on 14-4-79 and the publication of the substance in the locality was made on 10-6-79. Their Lordships construed Rule 1 and held that it relates to the issue of notice where enquiry was not dispensed with but not publication of the substance of the notification. They took the view that the publication in the locality can be made within a reasonable time as sec. 4(1) itself does not prescribe any time limit, and they held that the observation of the Supreme Court in Narinderjit Singh v. State of Uttar Pradesn AIR 1973 SC 552 is not a case where they were dealing with the question of time-lag or the interval between the Gazette publication and the local publication and the observation of the Supreme Court in State Of Mysore v. Abdul Razak Sahib AIR 1973 SC 2361 must be confined where the enquiry under Sec. 5-A was not dispensed with. A bench consisting of Madhava Reddy. C.J, and P.A Choudary, J., (one of us) in Ch. Suryanarayana Reddy v. Govt. of A.P 1982 (2) APLJ 95 reviewed all the earlier cases and struck a different note and held that the notification in the Gazette must be published simultaneously if possible but in any case atleast immediately after the publication in the gazette and they questioned the notification as there was delay of forty days in publishing the substance. My learned brother P.A Choudary J., in two separate Judgements of his W.P No. 1985/82 dt. 8-7-82 Mohd. Khaja v. Govt. of A.P 1982 (2) ALT 138 and W.P No. 1330/82 dated 4-8-82 following the above Judgment to which he is a party reiterated the said View and held that the substance of the notification must be published simultaneously. He emphasized the fact that a simultaneous publication is not really so simultaneous either, and it gives 24 hours time to do a thing because law takes no note of the part of the day. In the first instance there is a delay of five months twenty three days and in the second case there is a delay of twenty seven days. However Jayachandra Reddy, J., in writ petition No. 4468/80 substained the notification when there is a delay of 20 days in publishing the substance of the notification. In a recent judgment a Division Bench consisting of Ramachandra Rao. J., and Sriramulu, J., in B.C Sangh v. District Collcector 1982 (2) ALT 223 where the notification was published in the gazette on 12-5-1979 and the publication of the substance of the notification was made on 2-6-79 within a period of twenty days reviewing the Page: 321entire case law it was held that it is not fatal. Their Lord ships referrey to the Bench Judgment of Madhava Reddy, A.C.J, and P.A Choudary, J. in Ch. Suryanarayana Reddy v. Government of A.P 1982 (2) ALT 55 1982 (1) An WR 11 held that it did not lay down any different rule of interpretation as it was observed in that case that, “the unexplained delay in the publication of the substance of the notification in the locality would be fatal to the acquisition proceedings.” But they dissented with the view expressed by P.A Choudary, J., in Mohd. Khaja v. Govt. of A.P 1982 (2) ALT 138 holding that the local publication should be simultaneous or immediate as the full bench in Shahnaz Salima v. Govt. of A.P (Writ petition No. 3353/76 & batch dt. 26-9-1978) which approved the view taken in Ramanna's case was not noticed and accordingly upheld the proceedings.

172. The Full Bench referred to above in writ Petition No. 3354/76 & batch dated 26-9-1978 considered the validity of the Amending Act 22 of 1976 and upheld the constitutional validity of the amending act excepting that the provisions of Sub-sec. (4) of Sec. 3 providing compensation payable in instalments in respect of the lands belonging to the persons who own less than the ceiling limits, and cultivate them personally. The said judgment is the subject matter of an appeal in the Supreme Court and the declaration granted by the above Full Bench was suspended by the Supreme Court. In that batch of cases a contention was raised that the publication of the notification in the gazette and the publication of the substance at the notification must be simultaneous. Their Lordships agreeing with the view expressed in Ramanna's case observed. “It is not possible to think that the Legislature has provided for an impracticable and at the same time unnecessary task. What Sec. 4(1) requires is that sec. 4 (1) notification must be published in the official gazette and its substance of the convenient places in the said locality. Therefore, we arc in agreement with the view taken by the division Bench in the aferesaid decision. “Their Lordships did not refer the judgment of the Supreme Court or other provisions of the Land Acquisition Act and for the reasons stated by my learned Brother P.A Choudary, J., we are inclined to take the view that in the above Full Bench judgment an authoritative pronouncement was not made to make a binding precedent to hold the field on the question now raised before us. Hence we are inclined to examine the question on merit,

173. Let us examine some of the judgments of the other High Courts in respect of this problem. A Full Bench of Punjab and Harayana High Court in Rattan Singh v. State AIR 1976 Punjab & Haryana 279 held that the publication of substance of the notification of the gazette on 29th day in the locality makes the proceedings void. The Full Bench took the view that by publishing the substance in the locality as late as on the 29th day after the publication in the official gazette deprives Page: 322the petitioner's right to file objections and the proceedings are void. They further held that the publication in the locality must be simultaneous and in any case it must be done at least immediately and it would be for the State to show that whatever time was taken to give notice of the substance in the concerned locality was the minimum possible time taken for this purpose. In Dayawati v. Collector, Shaharanpur AIR 1975 Allahabad 202 the notification published in the locality after 24th day was quashed as it was published beyond the statutory period of 21 days. There was a local amendment to Sec. 5-A of the Central Act restricting the period of 21 days to file objections instead of thirty days. They held that the right to file objections itself was abrogated and the notification is unsustainable. The same High Court in M.B Vidyalaya Society v. State AIR 1976 Allahabad 188 quashed the notification when the notification dated 17-1-1970 was published in the locality on 18-3-1970 on the ground that it was beyond the statutory period of 21 days completely destroying the rights of the parties to file objections. Similarly the Madras High Court in P.V. Mohammed Ghouse v. State Of Tamil Nadu 1978 (1) MLJ 339 quashed the proceedings when the notification dated 22-3-1977 was published in the locality on 20-7-1977. The same High Court in another judgment reported in the same volume at page 450 Nagammal v. State of Tamilnadu 1978 (1) MLJ 450 quashed the notification when there is a delay of 22 days. In Gangadhariah v. State of Mysore ILR 1960 Mysore 636 when there is a delay of 29 days in publishing the notification in the locality the proceedings were quashed. In Thirumalaiah v. State of Mysore AIR 1963 Mysore 252 when there is no publication of the substance of the notification the court issued a direction to the authorities to make the necessary publication in the locality and also hear the objections.

174. It is pertinent at this stage to note that Rule 1 of the Rules made under Sec. 55 of the Act (Rules made by the Madras Government on 1-11-1924) is adopted in Andhra Pradesh. The said rule runs as follows:

“Rule 1: Immediately after the publication of the notification under Section 4 (1) the Collector shall issue a notice stating that the land is needed or is likely to be needed, as the cases may be, for a public purpose and requiring all persons interested in the land to lodge before the Collector within 30 days after the issue of the notification a statement in writing of their objections, if any, to the proposed acquisition. This notice should be published at convenient places in the same locality, and copies thereof fixed up in the office of the Collector, the Tahsildar, and in the nearest police station.”

175. The two Division Banches referred to above took a different view on the construction of this Rule. Alladi Kuppuswami, J., (as he than was) Page: 323and Ramachandra Raju. J., (One of us) held in G. Bheemappa v. State of A.P 1979 (2) APLJ 253 that this rule relates to the publication of the notification in the locality and construed the word ‘immediately’ as forthwith and held that though under Sec. 4 of the Act. no time limit is prescribod for the publication of the substance of the notification in convenient places in the locality Rule 1 provides that it should be done so immediately after the notification is published in the Gazette. However Kuppuswami, J., (as he then was) sitting with jeevan Reddy, J., in I Umamaheswara Rao v. State of A.P 1973 (1) An WR 11 held that the Rule provides for issuance ef notice and not the publication of the substance of the notification and Rule 1 is attracted only in cases where the enquiry under Sec. 5-Ais not dispensed with

176. The Madras High Court in Gkousia Begum v. Union Territory Pondicherry AIR 1975 Madras 345 without referring to the said rule held that no personal notice is necessary to parties. Similarly in Mohd. Habibullah v. Spl. Dy. Collector AIR 1967 Mydras 118 also without adverting to the said Rule it was held that notice need not be addressed to all the interested persons by name. A similar rule was framed in Maharashtra and relying on that rule in Ajit Singh v. State AIR 1972 Bombay 177 it was heid that a failure to issue notice as contemplated by the said rule renders the notification under sec. 6 invalid. But the Maharashtra rule specifically states that such notice has to be given where provisions of sec. 17 have not been applied. There appears to be a conflict on this question in Bombay as the Bombay High Court in A.P Puranik v. Sholapur Municipality AIR 1973 Bombay 160 took the view that a notice of notification under sec-4 (1) need not be served on the individual. A reading of the present rule shows that it relates to publication of the notification in the localitv and the same is not confined to issuance of notice in case where Sec. 5-A enquiry is not dispensed with. If the rule is to be confined only when sec 5-A enquiry is not dispensed with, the wording of the said rule would be different. Parther the later part of the rule requiring the publication of the notice in the locality and copies thereof fixed up in the office of the Collector, the Tahsidar and in the nearest police station become otiose.

177. Thus, this rule also supports the contention that the notification must be publication must be published in the locality immediately as any delay on the part of the authorities will deprive the owners of the land to file objections as the period of 30 days must be computed from the date of the notification published in the gazette.

178. Now though as laid down by the Supreme Court authoritatively that the publication of the notifiation in the gazette and the publication of the substance of the notification in the locality are mandatary and necessery foundations for the further proceedings under the Act it would be difficult to hold that the non-publication of the Substance of the notification immediately in the locality makes the notification itself void. Firstly the Page: 324language of sec. 4 does not warrant such construction though it is true that the rule of construction must be with reference to the other provisions of the Act and need not be confined to sec. 4 itself. The other provisions are secs. 23 and 24 bisides sec. 5 A of the Act. sec. 23 fixes the compensation payable to the claimant with reference to the market value of the land on the date of the publication of the notification.under sec. 4 (1) of the Supreme Court laid down in Lila Ram v. Union of India AIR 1975 SC 2114 that the effect of the notification under sec. 4 of the Act was to freeze the land. Secondly section 24 para 7 declaring the matters to be neglected in determining the compensation, states that any out lay or improvements on such land made, commenced, or effected without the sanction of the Collector after the date of publication of the notification under sec. 4 (1) shall not be taken into consideraticn. We have already noticed that 30 days period mentioned in sec. 5-A must be computed with reference to the issue of the notification. These three provisions would go to show that the date of notification is crucial and the rights have to be determined with reference to the said notification. But the question still remains whether the notification published in the gazette, by non-publication of the same in the locality simultaneously or immediately becomes ipso-facto void. The language of sec. 4 (1) itself contemplates that the publication of the substance of the notification must be a subsequent event because the Collector shall cause public notice of the substance of such notification to be given at convenient place in the said locality. The events clearly contemplate the publication of the notification in the gazette, and the substance of such notification to be given in convenient places should succeed one after another. So it is not in the contemplation of the framers of the Act that both should be done simultaneously or concurrently. The necessity of such construction arose every day's delay will infringe on the rights of the citizens to file objections as the period of 30 days will be curtailed and the statutory authority is not bound to consider the objections nay, they have no power to consider such objections filed beyond the statutory period. Hence to my mind it is one thing to say that the notification became insperative because of non- publication of the substance in the locality till it is so published, and another thing to say that non-publication simultaneously or immediately makes the notification itself void inotantaneously. Once it is seen that the two events of publication in the gazette and publication in the locality shall succeed one after another and two different persons viz., the Government and the Collector shall fulfil those conditions (as per Central Act) to my mind it is not possible to hold that the subsequent omission makes the earlier act which is validly done becomes illegal or void. We are not here concerned strictly with the mode of computation of the period of 30 days mentioned in sec. 5-A of the Act. No doubt there is a well known legal position that the compultation of the period of limitation in a given case may vary if the law contemplates that the person aggrieved must be aware of the proceedings before the period of limitation commences against him.

179. For example under the Land Acquisition Act The Supreme Court held in Harish Chandra v. DY. L.A Officer AIR 1961 SC 1500 that the period of limitation for requiring to make a reference under sec. 18 while construing the words “date of the Collector's awards” means the date of award either communicated to or is known to the party either constructively or actually. Such question was left open in Sivaprakash Mudaliar v. State of Madras 1963 (2) MLJ 376 where the question arose whether the period of 30 days can be computed after the publication of the substance of the notification in the locality as in that case a composite notification of Sec. 4 (1) and 17 (4) of the Act was quashed, and the counsel for the State argued that the objections under Sec. 5-A could be made within 30 days of the substance of the notification published by the Collector and it need not necessarily be within 30 days of the actual publication of the notification under Sec. 4 (1). But Their Lordships did not decide that question. I may also state here that some of the States made amendment to sec. 5-A and the amendment in the Bihar State to sec. 5-A directed that the objections can be filed within 30 days of the publication of the substance of the notification in the locality. In Karnataka the words “within 30 days after the issue of the notification” occurring in Sec. 5-A were substituted for “on or before the date specified in the notification under sec. 4(1)” there by any delay in publication need not hurt the citizen as the notification itself specifies the period. Similarly if the notification is not published in the locality, why the improvements made between the date of notification and the date of publication of the substance of the notification should be denied to the citizen under section 24 as the notification is inoperative by its non-publication in the locality. Further the courts have held that though the crucial date for determinig the compensation under sec. 23 is the date of notification, the post notification sales also can be taken into account provided they are bonafide. Further it is well to remember that the publication in the locality is not necessarily for the benefit of the owners but persons owning subordinate interest are also intended to be protected by such publication. In fact the notification is not an incumbrance as held by the Supreme Court in National Textile Corporation v. State of Maharashtra AIR 1977 SC 1566 and there may be occasions where after notification in the gazette under sec. 4 (1) the property may be sold without the knowledge of such publication and such sale is inffective and cannot bind the Government. In fact the courts suggested the necessity of entering in the registers maintained under Indian Registration Act 16 of 1908 the factum of notification under sec. 4 (1) the moment the notification was issued, so that it will be noticed as an incumbrance and no person will purchase the same after the property was notified.

180. It was urged by the petitioners that in view of the Supreme Court judgment in Domavathi v. State of Punjab AIR 1963 SC 151 that the notification under secs. 4 and 6 can be published simultaneously, the publication of the Page: 326substance of the 4 (1) notification must be done simultaneously even in such cases, as sec. 6 notification must always be published after sec. 4 notification. Once the notifications under secs. 4 and 6 are published simultaneously, there is no infirmity in publishing the substance of the 4 (1) notification subsequent thereto. In Maria Rosal Derose v. State of Tamil Nadu 1970 (2) MLJ 471 it was held that when secs. 4 and 6 notifications were published together the requirement of publishing the substance of the notification in the locality sinks into insignificance and it becomes impossible of observance and therefore in such circumtances, such publication of the substance of the notification in the locality can only be after the notification under sec. 6. Further the publication of the substance of the notification can be questioned on the ground that it is not properly published or the publication was not done at convenient places in the locality and it would be difficult to hold that any such infirmity in such publication also would invalidate the notification issued and published in the gazette. Though both the requirements are held to be mandatory the consequence of the omission of one of them may not have the same legal effect. Omission to publish the notification in the gazette is fatal because no initiation of the proceedings under the Act can be said to have taken place but the same legal consequences cannot be attributed for the omission of publishing the substance of the notification in the locality as according to me it is a subsidiary requirement and a subsequent requirement though equally mandatory and the principal requirement being the publication of the notification in the gazette. It is true till the notification is published in the locality, it is inoperative and all further steps are illegal.

181. Further in M/S. Vijaya Cotton and Oil Mills Limited v. State of Gujart 1969 (2) SCR 60 the Supreme Court held that “the procedure under sec. 5-A being entirely for the benefit of the persons interested in the land they may waive it. The statutory right which is granted as a privilege may be waived either altogether or in particular case.” It is an extreme case where the court has to treat sec. 6 notification itself as sec. 4 notification and determine the compensation as admittedly sec. 4 notification was not issued. The thirty days period is the upper limit for filing the objections. The objections can be filed within thirty days. Objections filed even on the last day also are bound to be considered. The thirty days period is not a period of enquiry and the language of sec. 5-A “within 30 days” is also indicative of the fact that giving opportunity is the basis of that provision.

182. We are taken through the provisions of the Land Acquisition Manual and several administrative instructions directing the authorities to prepare the notifications and the several preliminary steps to be taken before the notification is published in the gazette. I am not resting the conclusion on the ground that the simultaneous publication of the notification in the gazette and the substance of the notification in the locality is Page: 327not practicable, and is an. impossible task to be performed. On the other hand I hold following the dicta of the Supreme Court that the authorities are bound to publish the notification in the gazette and the substance of the notification in the locality simultaneously or immediately with the minimum possible delay. They must be quite alive to the fact that every day's delay will be infringing the right of the citizen and curtails his right to file objections within 30 days. Thus every day's delay makes the notification vulnerable and liable to be questioned in a court of law. As the right to file objections is being curtailed if the authorities take their own time and allow the entire 30 days period to lapse they are abrogating completely the right of the citizen under sec. 5-A and consequently the notification is void. This position.is obtaining even in a case where sec. 5-A enquiry is dispensed with as such delay on the part of the authorities in not publishing the substance of the notification in the locality having dispensed with the enquiry under sec. 5-A clearly constitutes an abuse of power. Hence any delay on the part of the authorities within 30 days can be examined by the courts in a given case to show any injury is caused to the owner of property. Hence, I answer the question holding that the substance of the notification under Sec. 4 (1) of the Land Acquisition Act shall be published in the locality simultaneously or immediately with minimum possible delay and any publication of such substance in the locality beyond 30 days makes the notification void irrespective of the fact whether 5-A enquiry was dispensed with or not and every day's delay in publishing the notification within 30 days makes the notification vulnerable and liable to be set aside on the fact and circumstances in a given case if the citizen establishes that he was prejudiced by the delay in publishing the same in the locality.

183. Let us answer the third question whether the violation of executive instructions vitiate the land acquisition proceedings. There is again conflict of judicial opinion in this court. A Division Bench consisting of Sambasiva Rao, Chief Justice and Ramanujulu Naidu, J., in Writ Appeal No. 381/78 dated 1-2-1979 held that the notification issued contrary to the executive instructions issued by the Government is vitiated by arbitrary exercise of the power vested in the Collector and is therefore liable to be quashed and the impugned notification was quashed as opposed to the declared policy of the Government of Andhra Pradesh. A Division Bench consisting of Gangadhara Rao, J., and Jeevan Reddy, J., held in Chenchamma v. District Collector, Nellore 1982 (2) AtT 14 that these executive instructions were not issued under any provision of the Land Acquisition Act and they do not have any statutory force and hence cannot override the provisions of the Act and accordingly they took the view that the action taken contrary to these instructions would not make the proceedings invalid. They also relied upon an earlier judgment in Writ Petition No. 326/76 dated 24-2-76, a judgment of Division Bench consisting of Chinnappa Reddy and Madhava Reddy, JJ (as they then Page: 328were) which took the similar view and dissented with the view expressed by P.A Choudary, J., (one of us) in K. Radha Krishna Reddy v. Dt. Collector Nellore. 1981 (2) APLJ 93 It is necessary for us to notice these executive instructions. The Social Welfare Department, Government of Andhra Pradesh, Hyderabad issued instructions on acquisition of land for provision of House sites for Scheduled castes scheduled tribes and backward clases. The preamble of the booklet states; “The scheme for acquisition of land for providing house sites to scheduled castes, scheduled tribes, backward classes. Economically backward classes and other weaker sections free of cost has been one of the most important welfare measures undertaken by the Government. In the context of 20-Point Economic Programme, the Government embarked upon a massive expansion of this programme for acquisition of lands for allotment of house sites to the needy persons belonging to the weaker sections of the Society.” At page 2 under the heading “Acquisition of the land about the circumstance of the village site” one direction given is that “Lands belonging to small farmers, marginal farmers, Scheduled Castes and Scheduled Tribes should not be acquired unless there are no other alternative suitable lands available for the purpose of house sites. If, however the lands of such persons have to be acquired, alternative lands may be given to them in exchange from the lands available at the disposal of the Government”. Again the next instruction reads. “The lands belong ing to poor persons with meagre land holdings (not more than 2 to 2½ Acs) should not be acquired unless otherwise inevitable for the purpose of maintaining proximity and vicinity to the main village and contiguity of the lands. This should be strictly adhered to”. At page 3 another instruction given is “wherever village sites are available, they are first made use of providing house sites for weaker section before acquisition of private sites.” At page 53 it was directed that, “all Collectors are informed that repeated complaints are being received by the Government that small extents of lands owned by small farmers are proposed for acquisition without proper verification which is causing hardship to the small ryots. The Collectors are requested to draw the attention of all Land Acquisition Officers to the Instructions issued in Memo No. 1287.C1/74-2 (S.W) dated 31-5-1974 and D.O No. 3273.C1/76-2 dated 20-7-1976 and see that while finalising Land Acquisition proposals, the lands of small ryots having meagre holdings of less than 2 to 2£2??? acres are not acquired, unless it beeomes absolutely inevitable to keep up the continuity and proximity. The Collectors are also requested to ensure in those cases where the land in rural areas is acquired from persons with meagre holdings not more than 2\??? acres of wet or 5 acres of dry, the compensation is paid in lumpsum unless the family is well off as a result of other sources of income as already instructed in Memo No. 5092.C1/75-1, E & SW., dated 11-12-1975”. These instructions so solemnly given by the Government cannot be disregarded by the authorities. In fact in the counters filed, it is not contended by the State that these instructions are not intended to be implemented and they are free to disregard them. But a legal question was raised stating that the court cannot enforce these instructions as they are not statutory rules.

184. No doubt firstly these instructions are not statutory rules. Secondly they are not issued under any statutory power but they are only administrative instructions issued under the executive powers conferred under Article 162 of the Constitution of India on State Government.

185. The heart of the matter is whether these instructions override the provisions of the Act as the Division Bench consisting of Gangadhara Rao, J., and Jeevan Reddy, J., held. According to me they are not derogatory of the statutory power given to the authorities on the Land Acquisition Act and they are not inconsistent with any provision of the Act. In fact the Land Acquisition Act has laid down the procedure for acquisition of land and does not exclude from its purview any category of lands, except stating the special procedure while exercising emergency powers in respect of arable and waste lands and other lands. It is purely in the discretion of the State Government to exercise its powers under the Act for acquiring land for public purpose and before they invoke their power under the Act they are governed by their policies and expediency. Before the statutory power is invoked i e., their decision prior to invoking the statutory power is purely an executive function untrammelled by the statutory limitations and in that area they are entitled to lay down the policies of their own, for the guidance of the authorities who are entitled to invoke powers under the Act. In fact before the Amending Act 22 of 1976 it is the Government alone that should issue notifications under Sections 4 and 6 of the Act and that power now is given to the Collectors also. However the Amending Act very significantly gives power to the Collectors under Secs. 4 and 6 to notify the land for acquisition for the purpose of construction, extension or improvement of a dwelling house for the poor only and for that purpose the principal Act stood modified. So, in respect of other purposes the Government alone should notify the lands for acquisition. Further Sec. 17(4) is not amended but under sec. 3 (A) of the Amending Act the power of the State Government to dispense with the enquiry is delegated to the Collector. The Act came into force on 12-9-1975 and the insrtuctions were issued thereafter by several G. Os. starting from 1976. Thus it is clear that the delegation of the power of the State Government to dispense with the enquiry under sec. 17(4) and the modification of the Land Acquisition Act so far as these acquisitions are concerned have necessitated the issuing of instructions to the Collector and these instructions cannot be treated as empty, informal or fanciful and liable to be ignored by the Collectors who are acting as delegates under the powers conferred upon them under the Amending Act referred to above. Hence these instructions may be termed as, quasi-legislative touching the subject, an expression so far as I see was used for the first time by R.E Megarry in his article Administrative quasi-Legislation (Vide 60 L.Q.R page 125). C.K Allen in his ‘Law and Orders’ also accepted this description stating, “all types of official pronouncements, lying somewhere between advice, direction and interpretation, tend to develop into what has Page: 330been called “administrative quasi-law”. (Page 192 III Edition). The courts have occasion to examine the enforceability of this quasi law which was issued under executive power of the State Government under Article 162 of the Constitution of India. Wade in his Administrative Law, 4th Edition at page 540-541 under the heading ‘Non-statutory decisions’ states: ‘certiorari has thus been extended to enforce more administrative instructions, at any rate in cases where they take the form of published rules which the public are intended to be able to rely upon and where there is clearly a duty (even if not a legal duty) to give fair and correct decisions.” Again well known author S.A De-Smith in Fourth Edition under the Chapter relating to clasification of functions “Administrative” and “Legislative” at page 74 gives an instance where “The courts have given legislative effect to what is ostensibly a purely administrative announcement. The Criminal Injuries compensation Board was created to administer a non-statutory scheme for compensating victims of crimes of violence by ex-gratia payments out of funds authorised by Parliament. The Board was required to follow a judicial-type procedure and to apply the legal standards contained in the scheme. Although a claimant has no legally enforceable right to any compensation, he is entitled to obtain certiorari to quash a determination of the Board if the proceedings or determination are tainted by defects that would warrant the award of certiorari to quash a determination of statutory tribunal.” (Vide Regina v. Criminal injuries compensation Board, ex-parte lain 1967 (2) Q.B 864 and Regina v. Criminal injuries Compensation Board ex-parte ince Judgment of Court of Appeal 1973 (I) W.L.R 1334). Thus it is clear that these instructions which are issued to the delegates who are not exercising quasi-judicial powers are only policy decisions in respect of which they should be guided, while invoking the powers of the Act and are clearly binding on them and they in no way detract the powers exercisable by them in the process of acquisition. They regulate the policy decisions and expediency and the policy alone that constitute the subject matter of these instructions and they clearly give rights to the persons for whose benefit those instructions are intended.

186. It is true that though our Supreme Court on an earlier occasion ruled that administrative directions are not enforceable in a court of law, there is a steady departure from that view and clear binding authorities govern the field. In Union of India v. K.P Joseph AIR 1973 SC 303 in a case where the rate of salary fixed in respect of re-employed persons, the Supreme Court held that such administrative directions are enforceable. Mathew, J., at page 305 held: “to say that an administrative order can never confer any right would be too wide a proposition. There are administrative orders which confer rights and impose duties. It is because an administrative order can abridge or take away rights that we have imported the principle of natural justice of audi alteram partem into this area.” In Amarjit Singh v. State of Punjab AIR 1975 SC 985 Bhagwati, J., held that the executive instructions embodying the Page: 331policy of promotion is binding and enforceable. His Lordship also held: that simply because those instructions were not statutory and were merely administrative instructions they cannot be disregarded and the State Government could not at its now sweet will depart from it without rational justification, and such action is clearly violative of Articles 14 and 16 of the Constitution. The learned Judge rested this principle not only on the rule of equality but as one principle as part of rule of administrative law basing on the diota of Justice Frankfurter in Vitaralli v. Seaton 1959 359 U.S 535 at p. 546-547 3 Law Ed. (2nd Series 1012). It was held in the above case that an executive agency must be rigorously held to the standards by which it professes its actions to be judged and it must scrupulously observe those standards on pain of invalidation of an act in violation of them. The same principle and diota of Frankfurter was again followed by Mathew, J., in Sukdev Singh v. Bhagatram AIR 1975 SC 1331 at page 360 holding that the regulations framed by the corporations have not got the force of law but the principle laid down by Justce Frank- further in Vitarelli v. Staton should govern the situation, holding “He that takes the procedural sword shall perish with that sword”. Justice Bhagwati again reiterated the same principle in Ramanna v. L.A Authority of India AIR 1979 SC 1628 at page 1636 holding that this principle of administrative law which has been judicially evolved as a check against exercise of arbitrary power by the executive authority is independent of Art. 14 of the Constitution of India. Further there are direct authorities on the point where the High Court quashed the land acquisition proceedings when the proceedings are contrary to the declared policies of the Government. In Maganbhai v. State A.I.R 1976 Gujarat 84) a Division Bench held: “The Government has taken a policy decision not to acquire the land on which constructions had been raised for personal use or the lands surrounding whereof construction for activities were carried on by the individuals or by the co-operative societies for erecting residential premisses. The Government decision was not to acquire lands within the area of quarter or half a mile of such developed area. Once the Government lays down the policy it has to follow it uniformly.” It was further held that “the Government cannot resort to such policy in certain cases where it likes and depart from the said policy as it chooses. Having laid down a definite policy the Government cannot follow the irrational method of pick and choose, such actions of pick and choose will be arbitrary and violative of Article 14 of the Constitution and have to be struck down being contrary to the, constitutional provisions” Similarly in Achhelal Singh v. State AIR 1980 Patna 49 it was held that where the circulars issued by the Government reflecting the need for striking a balance between the injury, annoyance and inconvenience that would be caused to persons whose lands are proposed to be acquired and the good that may do to those for whose benefit they were acquired, are violated the proceedings, are set aside. I Page: 332may mention at this stage the view of the Division Bjnch in Chenchatnma v. Dt. Collector, Nellore 1982 (2) ALT 14 basing on three judgments of the Supreme Court are cleacly inapplicable to the facts of the case. R. Abdullah Rowtheres. S.T.A Tribunal AIR 1959 SC 896 relates to the directions issued by the Government under sec. 43-A of the Motor Vehicles Act to the Tribunals. The Supreme Court explained the said judgment, in a subsequent case in K.M Shanmugam v. SRVS (P) Ltd. AIR 1963 SC 1626 holding that the directions issued under sec. 43-A could not add to or substract from the consideration prescribed under sec. 47 but could only afford a reasonable guidance for exercising the jurisdiction by the authority. In G.J Fernandez v. State of Mysore AIR 1967 SC 1753 Their Lordships ruled that the administrative directions issued in the P.W.D Code are not enforceable as they are matters between the State Government and their servants. In Regina v. S.T.A.H.E School AIR 1971 SC 1920 it was ruled that the violation of grant-in-aid rules by the Management would not give any right to teachers working in those institutions. However the present position is quite different in view of the bitter complaint by the local public that the indiscriminate acquisition is being made and even local influences are allowed to play part in the decisions of the authorities and to avoid such contingencies the Government have issued these instructions to the Collectors to whom they have delegated the powers under the Amending Act. Thus it is clear that the Collectors who are acting as delegates under the powers of the Government in the first instance are bound to follow these instructions as they are not (while exercising the powers under the Act), acting as quasi-judicial authorities. Secondly the instructions relatiug to the area of a policy decision before powers are invoked can certainly be the subject matter of executive instructions. Thirdly these instructions partakes the character of quasi-legislation which the State Government are entitled to issue as the executive power of the State shall extend to the matters in respect of which there is no law and in respect of which they have power to make laws. Fourthly these instructions which part-take the character of a quasi-legislation confer important rights on the citizens protecting there property prohibiting the authorities from acquiring the land.

187. However we must make it clear that these instructions are conditional and the petitioners cannot invoke the benefit of these instructions unless those conditions are fulfilled. For example in the instructions it is directed that the lands of the marginal farmers should not be acquired unless otherwise inevitable for the purpose of maintaining proximity and vicinity to the main village and contiguity of the lands. It is permissible for the statutory authority to show that in view of the proximity and vicinity to the main village and in view of other circumstances of the case the lands of those small and marginal farmers are acquired. Hence, I Page: 333answer the third question formulated by me holding that the violation of those administrative instructions issued by the Government which constitute a quasi-law on the subject is clearly justiciable and the citizens can obtain redress in a given case if those instructions are disregarded without any justifiable ground.

Reference answered accordingly.