ABDUL LATIF IDUBHAI Vs. STATE OF GUJARAT

JUDGEMENT

(1.) This is an appeal by the original plaintiff of the Civil Suit No 1481 of 1970 of the court of the City Civil Judge Ahmedabad. The suit had been filed be the plaintiff against the State of Gujarat and the Special Land Acquisition Officer Ahmedabad the respondents Nos. 1 and 2 herein for an injunction restraining them from taking possession of the suit property described in the plaint in pursuance of the acquisition proceedings which according to him were vitiated on account of the mandatory notice under sec. 4(1) of the Land Acquisition Act having not been given. The learned Judge negatived the basic contention of the plaintiff and dismissed the suit.

(2.) Mr. Mehta for the plaintiff-appellant invited my attention to sec. 45 of the Act under sub-sec. (2) of which the service of the notice has got to be made on the person named in the notice whenever it may be practicable. He urged by reference to sub-sec. (3) of sec. 45 that the service may be made on any male member of his family residing with him only when such person could not be found Mr. Mehta urged that there was nothing on record to show that the plaintiff was not found when the notice in question was sought to be served and unless that finding was there sec. 45(2) held the field and vitiated an important and inevitable stage in the process of acquisition of the property.

(3.) Mr. Mehta in support of his submission invited my attention to the two reported authorities. The first is the case of Mt. Banarasi Devi Jhunjhunwala v. The State of Bihar and Anr. A.I.R. 1959 Patna 83. In that case a notice was not served under sec. 12(2) of the Land Acquisition Act on the person but it was served on her nephew and it was not stated that the lady was not available. The service of the notice under the said section therefore was held invalid in terms of sec 45 of the Act. The second case relied upon by him is the case of Srimathi Charithoppilakath Kunhibi v. The Land Acquisition Officer Kozhikod A.I.R. 1962 Ker. 266 where also a notice under sec. 12(2) of the Act served on the husband of the woman was held to be not properly served for want of a finding that the wife the addressee of the notice could not be found.