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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