Full Judgment Text
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PETITIONER:
STATE OF GUJARAT
Vs.
RESPONDENT:
PANCH OF MANI HAMAM’S POLE & ORS.
DATE OF JUDGMENT19/12/1985
BENCH:
OZA, G.L. (J)
BENCH:
OZA, G.L. (J)
MADON, D.P.
CITATION:
1986 AIR 803 1985 SCR Supl. (3) 872
1986 SCC (1) 566 1985 SCALE (2)1500
ACT:
Land Acquisition Act, 1894, s. 4 read with Rule 1 of
the Bombay Rules as adopted by the State of Gujarat and
s.9(3) - Interested person’ - Whether individual notice
necessary - Absence of individual notice - Whether
Proceedings invalid.
HEADNOTE:
Acquisition proceedings under the Land Acquisition Act,
1894 in respect of the lands in possession of the
respondents Nos. 2 and 3 were started and an award made.
Respondents Nos. 2 and 3 filed a civil suit for declaration
that the acquisition proceedings and the award pursuant
thereto were illegal and for an injunction restraining
defendants from taking possession. It was contended that no
notice was given to them under s.4 and 9(3) of the Act, that
they were not aware of the land acquisition proceedings
until their landlord told them that possession was to be
handed over to the Government, that they were the tenants
and had raised structures at their own costs and, therefore,
in absence of individual notice to them the entire
proceedings are vitiated. The appellant-State contested the
suit alleging that the notification under s.4 was published
in the Gazette, and that apart, this notification as well as
notices under ss. 9 and 10 were also pasted on the site to
be acquired and were also served on the persons known or
believed to be interested in the land.
The Trial Judge dismissed the suit holding that since
the respondents had actual knowledge of the intended
acquisition, failure to give individual notice under s.9(3)
does not invalidate the acquisition proceedings. This order
was confirmed by the First Appellate Court. In the Second
Appeal by respondents, the High Court set aside the
acquisition proceedings relying on its earlier decision in
Ashok kumar Gordhanbhai v. State of Gujarat & Ors. and
holding that under s.4 of the Act read with Rule 1 of the
rules framed by the State Government under s.55 of the Act,
service of notice on parties interested in the land is not
only obligatory but a condition precedent and, therefore,
the acquisition proceedings were bad and granted injunction
as prayed for.
873
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In appeal to this Court by the State it was contended
that the respondents had challenged the proceedings on two
grounds: (i) that s.4 read with rule 1 of the Bombay Rules
and adopted by the State of Gujarat require a personal
notice of intention to acquire under s.4(1), and (ii) that
under s.9(3) of the Act also individual notice is necessary;
but in the present case, after the award was made, the
respondents accepting the award filed a suit against the
landlord who was a party to the acquisition proceedings and
obtained a decree for their share of the compensation and,
therefore, the objection under s.9(3) no longer survives,
that the High Court in a subsequent decision in the case of
Vasudev Chunilal Pancholi v. State of Gujarat and Ors. held
that individual notice under s.4(1) read with Rule 1 is not
necessary, and, therefore, Rule 1 of the rules framed under
s.55 could not go beyond the requirement under s.4(1) and to
that extent the rule is bad in law.
Allowing the appeal,
^
HELD : There are no words in Rule 1 indicating a
personal notice. What Rule 1 contemplates is a notice to the
interested parties as required under s.4(1) and s.4(1)
requires the notice to be notified at a convenient place in
the locality for information of the interested parties. It
is, therefore, clear that by reading s.4(1) with Rule 1 it
could not be interpreted to mean that a personal notice to
each and every interested person is the requirement of s.4
and in absence of such a notice the proceedings of
acquisition will be invalidated. [877 E-G]
In the instant case, the procedure laid down in s.4(1)
of the Act was followed and, therefore, it could not be said
that the notice as contemplated under s.4(1) read with Rule
1 was not given to parties interested and, therefore, it
could not be held that the proceedings of acquisition are
bad in law. [878 A-B]
Ashokkumar Gordhanbhai v. State of Gujarat & Ors., 10
Gujarat Law Reporter 503 overruled.
Vasudev Chunilal Pancholi v. State of Gujarat and Ors.,
25(2) Gujarat Law Reporter 844 and Bai Malimabu etc. v.
State of Gujarat & Ors., A.I.R. 1978 S.C. 515 approved.
JUDGMENT:
CIVIL APPELLATE JURISDICTION : Civil Appeal No. 1464(N)
of 1972.
874
From the Judgment and Order dated 8.7.1970 of the
Gujarat High Court in S.A. No. 45 of 1963.
G.A. Shah, Girish Chandra, R.N. Poddar and C.V. Subba
Rao for the Appellant.
H.J. Zaveri for the Respondents. (Not present)
The Judgment of the Court was delivered by
OZA, J. This appeal is by special leave granted by this
Court against the judgment of Gujarat High Court at
Ahmedabad in Civil Second Appeal No. 45 of 1963.
Respondents Nos. 2 and 3 filed a suit No. 1476 of 1958
in the Court of Joint Civil Judge (Senior Division),
Ahmedabad for declaration that the proceedings and award in
land acquisition case No. L.A.Q. 1496 were illegal and for
injunction restraining the defendants, the Panch of Nain
Hamam’s Pole of Gujarat and the State of Gujarat from doing
any act affecting the plaintiff’s possession of Municipal
Census Nos. 605 and 605/1 and Census Nos. 1335 to 1337 of
Shahpur Ward II and the superstructure standing thereon
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situated in Nain Hamam, Ahmedabad.
These lands were acquired by acquisition proceedings
under Land Acquisition Act, 1894. After Notifications under
Section 4 and 6, the acquisition proceedings proceeded
further for determination of compensation and an award was
made.
The grievance made by Plaintiff/Respondents Nos.1 and 2
was that no notice was given to them personally under
Section 4 and Section 9(3) of the Land Acquisition Act and
that they were not aware of the Land acquisition proceedings
till their landlord defendant No.1 told them that possession
of these lands were to be handed over to the Government on
22nd July, 1958. Their contention is that they were the
tenants of respondent No.1 in respect of the acquired land
and has raised structures thereupon at their own costs.
Being the tenants in the lands acquired and being the
occupants of the structures standing on the lands they were
entitled to individual notices under section 4(1) and 9(3)
of the Act and in absence of such notices, the entire
proceedings are vitiated.
The present appellant, the State of Gujarat, in their
written statement pleaded that the notification under
section 4
875
apart from being published in the Gazette was pasted on the
site and was served on the persons known or believed to be
interested. Similarly notices under section 9 and 10 were
also pasted on the site to be acquired and were also served
on the persons known or believed to be interested in the
land.
The Trial Court held that as plaintiffs/respondents
Nos.2 and 3 are persons interested in the acquired land were
entitled to individual notices under Section 9(2) of the Act
and no notice was served on them as the acquisition
authorities did not know that the plaintiffs/respondents are
interested in the land as their names did not appear in the
City Survey Records. The Trial Court further held that the
plaintiffs/respondents had actual knowledge of the intended
acquisition and as such failure to give individual notice
does not invalidate the acquisition proceedings. The Trial
Court therefore dismissed the suit.
The plaintiffs/respondents preferred an appeal but the
First Appellate Court maintained the judgment of the Trial
Court and dismissed the appeal. The plaintiffs/respondents
preferred a second appeal to the High Court and raised the
same contentions. The High Court upheld the contentions and
set aside the acquisition proceedings. The High Court
placing reliance on the earlier decision of the High court
in Ashokkumar Gordhanbhai v. State of Gujarat & Ors., 10
Gujarat Law Reporter 503 held that under section 4 of the
Land Acquisition Act read with Rule 1 of the rules framed by
the State Government under Section 55 of the Act, service of
notice on parties interested in the land is not only
obligatory but a condition precedent and therefore on this
count held the acquisition proceedings to be bad and it also
granted injunction restraining the State Government from
interfering with the possession of the plaintiffs of the
property. The High Court refused the certificate under Art.
133 and therefore this appeal has been preferred after
obtaining a certificate from this Court.
Learned counsel appearing for the State contended that
the respondents/plaintiffs challenged the proceedings on two
grounds; (i) on the ground that Section 4 read with Rule 1
of the Gujarat rules require a personal notice of intention
to acquire under Section 4(1); (ii) the proceedings were
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also challenged on the ground that under Section 9(3) of the
Land Acquisition Act also the plaintiffs/respondents are
entitled to individual notice. But it was contended by
learned counsel that so far as objection under Section 9(3)
is concerned it would only invalidate the award, but in the
present case as after the award was made, the
plaintiffs/respondents accepting the award filed a suit
against
876
the landlord who was a party to the acquisition proceedings
and obtained a decree for his share of the compensation.
That having been done the question of objection under
section 9(3) now is no longer of any consequence. He,
therefore, contended that the only question which deserves
consideration in this appeal is about the notice under
section 4 to the plaintiffs/respondents in view of Rule 1 of
the rules framed under section 55 of the Land Acquisition
Act which are known as Bombay Rules adopted by the State of
Gujarat.
It was contended that following the decision of the
Gujarat High Court in Ashokkumar Gordhanbhai v. State of
Gujarat & Ors., Gujarat High Court, in the present case held
that as notices to the plaintiffs/respondents were not
served as required in Rule 1 the proceedings of acquisition
are invalidated. But it was contended by the learned counsel
that this view was not followed by Gujarat High Court in a
subsequent decision in Vasudev Chunilal Pancholi v. State of
Gujarat & Ors., 25(2) Gujarat Law Reporter 844. In this
decision, the High Court following the decision in Bai
Malimabu etc. v. State of Gujarat & Ors., A.I.R. 1978 S.C.
515, held that individual notice under section 4(1) read
with Rule 1 is not necessary. It was therefore contended
that Rule 1 of the rules framed under section 55 could not
go beyond that requirements under section 4(1) and to that
extent the rule is bad in law. It was therefore contended
that the High Court has committed an error in decreeing the
suit filed by plaintiffs/respondents.
Section 4(1) of the Land Acquisition Act as it stood at
the relevant time reads as under :
"4. Publication of preliminary notification and
powers of officers thereupon. -(1) whenever it
appears to the appropriate Government that land in
any locality is needed or is likely to be needed
for any public purpose, a notification to that
effect shall be published in the Official Gazette
and the Collector shall cause public notice of the
substance of such notification to be given at
convenient places in the said locality."
This provision contemplates the notification to be
published in the Official Gazette indicating the intention
of the State Government of acquisition for a public purpose
and it further requires that the collector shall cause a
public notice of the
877
substance of such notification to be given at a convenient
place in the same locality. The purpose of this second part
of section, of giving a notice by the Collector by notifying
it at a convenient place in the locality appears to be to
intimate the persons affected by the acquisition. Rule 1
which is relevant for consideration reads as under :
"(1) Whenever any notification under section 4 of
the Act has been published but the provisions of
the section 17 have not been applied and the
Collector has under the provisions of Section 4(1)
issued notices to the parties interested; and on
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or before the last day fixed by the Collector in
those notices in this behalf any objection is
lodged under section 5-A (2), firstly, the
Collector shall record the objection in his
proceedings. Secondly, the Collector shall
consider whether the objection is admissible
according to these Rules".
The relevant words in this Rule are: "Collector has under
the provisions of section 4(1) issued notices to the parties
interested;". It is these words on the basis of which, in
the impugned judgment, the High Court felt that a personal
notice to the persons interested is mandatory provision and
in absence of such a notice the proceedings of acquisition
will be invalidated. In fact there are no words in this rule
indicating a personal notice. What has been indicated is
that the Collector has issued notice to the parties
interested under provisions of section 4(1). Section 4(1)
quoted above indicates the manner in which a notice will be
given to the parties interested. And that is by getting a
public notice having the substance of the notification given
at a convenient place in the said locality. Therefore, what
Rule 1 contemplates is a notice to the interested parties as
required under section 4(1) and section 4(1) requires the
notice to be notified at a convenient place in the said
locality for information of the interested parties. It is,
therefore, clear that by reading section 4(1) with Rule 1 it
could not be interpreted to mean that a personal notice to
each and every interested person is the requirement of
section 4 and in absence of such a notice the proceedings of
acquisition will be invalidated. The High Court in the
impugned judgment placing reliance on Ashokkumar Gordhanbhai
v. State of Gujart & Ors., (supra) came to the conclusion
that as such an individual notice was served in the present
case, the proceedings of acquisition are bad in law. As
discussed earlier, reading of section 4(1)
878
with Rule 1 does not provide for an individual notice but
only requires a notice as contemplated under section 4(1) to
the interested persons. The manner in which the notice is to
be given is provided in section 4(1) itself by publication
of the substance of the notification at a convenient place
in the locality. It is not in dispute that such a procedure
was followed and therefore it could not be said that the
notice as contemplated under section 4 (1) read with Rule 1
was not given to parties interested and therefore it could
not be held that the proceedings of acquisition are bad in
law. The High Court therefore was in error and the view
taken could not be maintained.
In Bai Malimabu etc. v. State of Gujarat and Ors. this
Court while considering the language of Rule 30-B of the
Gujarat Rules which is more or less similar to Rule 1 quoted
above took the view as under:
"Mr. Nagarasheth then submitted that no special
notice was given to the appellants of the
notification under section 4(1) as required by the
Gujarat Rules, the objections filed by the
appellant under section 5-A were not properly
inquired into and heard, the State Government did
not give any opportunity to them to make their
submissions vis-a-vis the report submitted by the
Collector, and the aforesaid infirmities vitiated
the declaration under section 6 of the Act. The
High Court has rightly held that no special notice
was necessary to be given to the appellants in
regard to the notification under section 4(1). Our
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attention was drawn to the alleged Rule 30-B of
the Gujarat Rules in support of the contention
that such notice was necessary to be issued to the
parties interested. There is no such requirement
in the said Rule. It merely pre-supposes that the
Collector has issued notices to the parties
interested under section 4(1). The requirement of
the section is giving of a general notice and by
two methods (1) by publication of the notification
in the Official Gazette and (2) causing public
notice of the substance of such notification to be
given at convenient places in the locality. The
appellants do not contend that there was no
compliance with the requirements aforesaid. Proper
inquiry was held under section 5-A of the Act and
full opportunity was given to the appellants. It
was not the requirement of the law to give any
further opportunity after
879
a report was made to the State Government. It is
the function of the State Government to consider
the report of the Collector and proceed further in
the matter as they think fit and proper to do."
In the light of the discussion above, therefore, the
appeal is allowed with costs and the judgment and decree
passed by the High Court in Civil Second Appeal No. 45 of
1963 are set aside and the said second Appeal is dismissed.
There will be no order as to costs throughout. Security
amount deposited shall be refunded to the appellant.
A.P.J. Appeal allowed.
880