MALI KODARBHAI MOTIBHAI Vs. STATE OF GUJARAT

JUDGEMENT

(1.) This is a Letters Patent Appeal under clause 15 of the Letters Patent against the judgment dated October 30 1965 delivered by a single Judge of this High Court in Second Appeal No. 1149 of 1960 dismissing the appeal. It involves a substantial question of interpretation of the second part of sub-sec. (1) of sec. 4 of the Land Acquisition Act 1894 (I of 1894) which will hereafter be referred to as the Act which provides :- .. ...and the Collector shall cause public notice of the substance of such notification to be given at convenient places in the said locality. The learned Judge has taken the view that this second part of the sub-section is a directory and not a mandatory provision of law. In his opinion the Legislature could not have intended to make the latter part of the sub-section mandatory in all circumstances.

(2.) The relevant facts may first be shortly stated. The appellant named Mali Kodarbhai Motibhai claims to be a protected tenant of the southern half of land bearing survey No. 27 situated in village Jhalod in Taluka Jhalod in District Panchmahals. The preliminary notification under sec. 4(1) of the Act of the intended acquisition of the said land bearing date September 11 1951 was published in the Bombay Government Gazette dated September 20 1951 It was notified that the lands specified in the schedule thereto were likely to be needed for a public purpose viz. for State Transport. The notification is not shown to have been preceded by a preliminary survey contemplated under sec. 3A in new Part I-A of the Act as inserted by sec. 2 of the Land Acquisition (Bombay Amendment) Act 1945 (Act 20 of 1945). The notification published also invoked the urgency clause under sec. 17(4) of the Act and stated that the Government of Bombay was further pleased to direct under sub-sec. (4) of sec. 17 of the Act that as the acquisition of the said land was urgently necessary the provisions of sec. 5A of the Act shall not apply in respect of the said land. It is common ground that public notice of the substance of such notification to be given at convenient places in the locality in question which was required to be given by the Collector as provided in the second part of sub-sec. (1) of sec. 4 of the Act was not given. The declaration under sec. 6 was thereafter made on November 19 1951 and it was published in the Bombay Government Gazette dated November 22 1951 Sec. 9 notice was served on the appellant on June 29 1953 Long thereafter on April 25 1954 the Collector purported to take possession of the lands under acquisition. But it appears that the appellant entered into possession of the said lands soon thereafter and he continued to be in possession of the said lands at the date of the institution of the first civil suit challenging the acquisition. The appellant had first filed Civil Suit No. 148 of 1955 on August 10 1955 in the Civil Court at Dohad. In that suit he was one of the plaintiffs along with some others who were affected by the acquisition. The suit was filed against the S. T. Corporation and its Manager for a permanent injunction restraining them from taking possession of or constructing any building on the said land. The Government was not made a party in that suit. The suit was dismissed by the trial Court and the appeal there over was dismissed by the learned District Judge. A second appeal that was filed in this High Court was not admitted. During the pendency of that appeal the present appellant filed another suit viz. Civil Suit No. 3 of 1957 against the State of Bombay and the S. T. Corporation. In this suit the plaintiff had inter alia challenged the award on the ground that mandatory provisions of sec. 4(1) of the Act were not complied with and therefore the award was unenforceable. The suit was for a declaration that the award which was in the meantime passed by the District Deputy Collector on July 25 1956 was a nullity. He also prayed for the relief of injunction restraining the defendants namely the State of Gujarat and the Gujarat State Road Transport Corporation Ahmedabad from taking possession of the land. The suit came to be dismissed by the learned Civil Judge and Civil Appeal No. 75 of 1959 against the said decision was dismissed by the learned District Judge Panchmahals. Being aggrieved the appellant filed Second Appeal No. 1149 of 1960 in this High Court. The said appeal has been decided by our learned brother N. K. Vakil J - by his judgment dated October 30 1965 and it is against the said judgment that this Letters Patent Appeal is directed.

(3.) Mr. G. P. Vyas learned advocate appearing on behalf of the appellant who was plaintiff in the suit has contended before us that the giving or the public notice of the substance of the notification published under the first part of sub-sec. (1) of sec. 4 of the Act was a mandatory provision of the Act and the non-compliance with such requirement would render the land acquisition proceedings void. In support of his submission he has relied upon the observations of fee Supreme Court in Khub Chand and others v. State of Rajasthan and others A.I.R. 1967 S.C. 1074 wherein Subba Rao C. J. speaking for the Supreme Court while dealing with a case under the Rajasthan Land Acquisition Act (24 of 1953) secs. 4(1) 4 and 5(2) observed that the provision of notice contemplated by sec. 4(1) of the Rajasthan Act is mandatory Relying upon this decision Mr. Vyas has contended that sec. 4(1) of Act I of 1894 (the Act) is in pari materia with sec. 4(1) of the Rajasthan Act and therefore relying upon the observations of the Supreme Court made therein we should take the view that the giving of public notice at convenient places in the concerned locality by the Collector was a mandatory requirement and non-compliance therewith would render the notification under sec. 4 void and the land acquisition proceedings taken pursuant thereto equally void. Now it is true that sec. 4(1) of the Rajasthan Act is in pari materia with sec. 4(1) of the Act. It provides for publication of preliminary notification and powers of officers thereupon and reads:-