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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