D.K.Seth, J. - (1.) M.A.T. No. 3029 of 2004 is preferred against the same judgment out of which M.A.T. No. 1821 of 2004 has since been preferred. M.A.T. No. 1821 2004 is in the list and was being heard for sometime and remained heard-in-part. "Mr. A.N. Banerjee, learned counsel on behalf of the appellant, had mentioned this matter (M.A.T. No. 3029 of 2004) earlier and we had directed that the matter should be in the list but the records could not be traced out so long. Today the records have come and have been placed before us." "By consent of the parties, M.A.T. No. 3029 of 2004 is treated as on day's list and is taken up for hearing." "This appeal has been filed after expiry of the limitation along with an application for condonation of delay. Despite objection on behalf of the respondents, and after having gone through the pleadings made out in the application for condonation of delay, we condone the delay. The application under section 5 of the Limitation Act is thus disposed of. Let the appeal be registered. Since we propose to hear the appeal, no order need be passed on the application for stay." "Since the appeal is preferred against the same order against which M.A.T. No. 1821 of 2004 is preferred which is being heard, we propose to dispose of M.A.T. No. 3029 of 2004 along with M.A.T. No. 1821 of 2004." "By consent of the parties, M.A.T. No. 3029 of 2004 is treated as on day's list and heard along with M.A.T. No. 1821 of 2004 and disposed of as hereafter."
(2.) In these two appeals the acquisition has been challenged on the ground that the objection filed by the writ petitioner-respondent was not considered. This is clearly in violation of the provisions contained in section 5A of the Land Acquisition Act, 1894 (LA Act). Relying on various decision, the learned counsel for the respondent submitted that the provisions of section 5A confers a very valuable right to the persons interested. Denial of opportunity of hearing as contemplated in section 5A has the effect of invalidating the entire acquisition proceedings, particularly, the declaration under section 6. In the present case, admittedly, the appellant in M.A.T. No. 3029 of 2004 had taken a stand that the objection was ignored on account of its being non-est/premature. Admittedly, therefore, no hearing was given and opportunity was denied. The protection that has been given to the persons interested to ventilate its objection goes to the root, according to the Scheme of the Act, of the declaration under section 6, which is dependent on the consideration of the objection as contemplated under section 5A. "The law is settled. The learned counsel for the appellant could not propound otherwise that denial of opportunity would invalidate the declaration under section 6 on account of infraction of principles provided under section 5A and section 6 respectively."
(3.) Now this question has to be looked into according, to the controversy, which both sides had advanced. It is contended on behalf of the Kolkata Metropolitan Development Authority (KMDA), the appellant in M.A.T. No. 1821 of 2004, that the notification under section 4(1) of the Land Acquisition Act was published in the Gazette dated 20th of January 1999, though the date of notification was 21st December 1998. As such the objection filed on 1st January 1999 could not have been filed until the notification was published in the Official Gazette, namely 20th January 1999. He contended that in the notification, it was mentioned that the period for submission of objection was 30 days after the publication of the substance of the notification in the locality. Therefore, the time would run only after giving of public notice of the substance of the notification in the locality and not publication. Therefore, the objection was non-est/premature and was rightly ignored. He also relied on the provisions of section 4(1) and section 5A of the LA Act. "Mr. Banerjee, appearing on behalf of the appellant in M.A.T. No. 3029 of 2004, contended that the period is provided in section 5A as within one month from the publication of notification. According to him, this phrase 'Publication of notification' has been amended in 1984 substituting the phrase 'within 30 days after the issue of notification'. According to him, the two phrases 'issue of notification' and 'publication of notification' connotes two different purposes. The 'issue of notification' would mean the date of issue, namely 21st of December 1988, whereas 'publication of notification' would mean publication in the Official Gazette, which is 20th of January 1999. According to him, this publication of notification is to be construed as it is contemplated under section 4(1), namely the last date of publication of the notification or the giving of public notice, which is to be so understood wherever it is referred to the date of publication of notification after section 4(1). Therefore, the phrase 'publication of notification' used in section 5A is to be interpreted according to the meaning given in section 4(1) brought about by amendment with effect from 24th of September 1984, which is after the date of the decision in Dipak Pahwa v. Lt. Governor of Delhi & Ors., AIR 1984 SC 1721. In view aforesaid, it is to be deemed that this amendment would have the effect of diluting the principle laid down in Dipak Pahwa (supra) to the extent of submission of objection. To support his contention, he also relied on the decisions in M/s. The Premier Motor Pvt. Ltd. v. Jaswant Prasad & Ors., AIR 1989 AP 342; Nanappan Konthu & Ors. v. District Collector, Kottyam & Ors., AIR 1989 Kerala 223 and M/s. Garg Pars, Delhi & Ors. v. State of U.P. & Ors., AIR 1990 Allahabad." "Mr. Mukherjee on the other hand pointed out that section 5A is an enabling provision which postulates giving an opportunity to a person interested. The LA Act affects the right of a person to hold property protected under Article 300A of the Constitution of India. Having regard to the compulsory nature, the little protection that has been given to a person interested cannot be taken away. Section 5A has to be considered in order to advance the object and purpose for which section 5A has been incorporated. It cannot be construed to curtail or reduce the right whatever little has been provided for the person interested." "According to him, the time limit provided in section 5A, i.e.: within 30 days from the date of the publication of the notification, provides the outer limit which is to be construed according to section 4(1) being the last date of publication of the notification contemplated under section 4(1) in any of the modes referred to therein. From the Scheme of the Act, it does not appear that anywhere any provision has been made for commencement curtailing the right to object. Therefore, this terminal point provided in section 5A has to be construed in terms of section 4(1) as amended in 1984, which, in fact, follows the principle laid down in Dipak Pahwa (supra) to do away with the controversy that was being faced by the Courts with regard to the terminal point. In the absence of any point of enhancement provided in the Act or within the Scheme expressly or by implication, the Court cannot construe the provisions to the inconvenience of the person interested, narrowing down the scope of section 5A. Therefore, the objection submitted on the publication of the notice in any one of the modes contemplated under section 4(1) would be valid and cannot be treated to be non-est or premature." "He also pointed out that a person may not be able to follow or trace out the publication in the Official Gazette, which normally does not reach ordinary people. The cause of notice to be given in the locality of the substance of the notification is also carried out through certain procedure, which is displayed in notice board in certain local offices. This also may not be known to many persons. The legislature was aware of these defects for which it had included publication in two newspapers circulating in the locality of which one has to be in the regional language only to facilitate persons interested to get notice of the intention of the State to acquire the property for the public purpose. Therefore, any one of the notices would be sufficient whether it proceeds or follows the other two modes even if the last date of such publication may be treated to be the date of publication for all other purposes namely for the purpose of declaration under section 6 or for the purpose of determination of compensation under section 23, but it cannot be construed in the same manner in relation of section 5A." "The object and purpose of this is to give the person interested a right to object against the compulsory nature of acquisition. Acquisition is a law, which affects the right of an individual depriving him of his property compulsorily and the scope of objection is only limited to the extent that the property is not required for the public purposes or that the purpose mentioned is not a public purpose. The scope of objection is also very limited. The period is also limited. Therefore, it is not possible to construe the said provision to confine the period during which objection can be filed only to 30 days between the last date of publication and the expiry of 30 days from such last date of publication as contemplated under section 4(1).";