MOHAMADSARIF HAKIMJI CHIPPA Vs. STATE OF GUJARAT

JUDGEMENT

(1.) This writ petition arises out of land acquisition proceedings, acquiring lands and structures thereon, falling with in the line of alignment for the Municipal Corporation of Ahmedabad in Jamalpur area of Ahmedabad City. The sixteen petitioners claim to be the tenants of structures, consisting of small shops and rooms. They are petty traders and artisans. Their case, as put forward in the petition, is that for the first time they came to know about the fact that the premises were being acquired under the Land Acquisition Act when they received notices dated the 3rd of June, 1961 from the taluka Magistrate under Section 47 of the Land Acquisition Act (herein after called the Act), calling upon them to surrender possession on the 30th of June 1961. It is alleged inter alia that they then came to know that without publishing the necessary notifications under Sections 4 and 6 of the At in the locality or affixing them on the premises, the Land Acquisition Officer had passed and filed an award in respect of these premises on the 3rd of April 1961. No notices were served on them under Section 9 or section 10 before making the said award, though they were the occupiers and as such, persons interested in the land and premises, which were being acquired . They therefore, approached the Collector . Thereafter the Land Acquisition Officer sent them notices under Sections 9 and 10 of the Act on the 3rd of July 1961. The petitioners, except petitioner No.16 appeared before the Land Acquisition Officer and filed their objections and made their claims. A second award dated the 25th of September 1961 was then passed by the Land Acquisition Officer with out property hearing them or holding any proper enquiry. Thereafter on the 3rd of October 1961, respondents No. 2 served notices on the petitioners except petitioner No. 16, that their premises were acquired under the second award dated the 25th of September 1961 and they should surrender possession on the 5th of December 1961. On the 4th October 1961, petitioner No.16 was served with a notice informing that the premises mentioned therein were acquired under the first award dated the 3rd of April 1961 and should give possession on the 5th of December 1961. Thereafter, notices were served on the petitioners on the 19th of January 1962 by the Taluka Magistrate under Section 47 of the Act to enforce the award by calling upon the petitioners to vacate the premises on or before the 20th of March 1962, failing which they would be forcibly evicted and prosecuted. On the 17th of March 1962, this petition was filed. The State Government s joined as respondents No. 1 and the special Land Acquisition officer of the Corporation s respondents No.2.

(2.) Mr. S. G. Rebello, the learned Advocate for the petitioners has raised the following three contentions only before us and has not pressed the others raised in the petition:

(3.) It was submitted that the petitioners are tenants or occupants of the premises acquired and there is no serious dispute about it. It settled law that notice under sub-section (3) of Section 9 is mandatory to be given to the occupants and failure to give notice would render the award not binding on them. No notice was served admittedly on the present petitioners by the Special Land Acquisition Officer. The first award dated 3rd of April 1961, therefore is invalid in law. Now, in order to support this submission Mr. Rebello relied upon the decision in Laxmanrao Kristrao Jahagirdar v Provincial Govt of Bombay, 52 Bom LR 316 = ( AIR 1950 Bom 334), wherein it has been laid down that under Section 9(3) of the Land Acquisition Act , 1894, it is only in the case of an occupier that the failure to serve a notice by itself may furnish him with a cause of action by which he could challenge the award. In the case of persons other than the occupier who are interested in the land, the mere omission or failure to serve a notice is not sufficient in itself to entitle them to challenge the award but they must establish that the failure to give them such notice was a willful or perverse or fraudulent failure on the part of the Collector . there can be no quarrel with the principle laid down that under sub-section (3) of Section 9, the giving of notice by the Collector to the occupant is mandatory and it is a condition precedent to be fulfilled to make the award binding on them. It is an admitted position in the instant case that no such notice was given to the present petitioners who were tenants of the various premises to be acquired. The result would be that, if the document dated 3rd April 1961 constituted by itself the award, that award and all the proceedings that followed upto the giving of notices to the petitioners under Section 9 are not binding in law on them, It is also clear that so far as the proceedings that preceded the requirements of giving of such notice under Section 9 would not be touched and , therefore, the publication of the notifications under Section 6 of the Land Acquisition Act would stand as valid acts on the part of the Collector