NARENDRAJIT SINGH AND ANR. versus STATE OF U.P. & ANR.

NARENDRAJIT SINGH AND ANR.

STATE OF U.P. & ANR.

November 21, 1969

(S. M. Snoo AND G. K. MITTER, JJ.]

Land Acquisition Act, 1894, s. 4-(1)-Notification under-Validity of Notification which dors not specify locality where land is needed.

The Government of Uttar Pradesh issued notification purporting to be one under s. 4(1) of the Land Acquisition Act, 1894, to the effect that. '-'the land mentioned in the Schedule is needed for public purpose". Tit~ notification did not specify the locality where the lands were needed. It further stated. that s. SA was not applicable since the provisions of s. 17 (1) was applicable to the land. This was followed by notification under s. 6 (1). The appellants challenged the proceedings in the High Cobrt on the ground, among others, that the notification under s. 4 was invalid for non-eompliance with the mandatory provisions of the Act rendering the whole proceedings void. The High Court dismissed the petitions. Allowing the appeal,

HELD: The issue of notification under sub ... (1) of s. 4 is con-dition precedent to the exercise of any further powers under the Act and notification which does not comply with the essential requirement of that provision of law must be held to be bad.- Section 4( I) does not re-quire that the identity of the land which may ultimately be acquired should be specified; but it enjoins upon the Government the duty to specify the locality in which the land is needed. Any notification which is the first step towards depriving man of his property must be strictly construed and courts ought not to tolerate any lapse on the part of the acquiring authority in the issue of such notification if it be of serious nature. [281 E-F; 283 B-C]

In the instant cases the notifications suffered from

very serious

defect in that the locality where the lands were needed was not specified. The notification merely indicated that the lands mentioned in tJie schedule were needed. The defect in notification under s. 4(1) cannot be cured by giving Juli particulars in the notification under s. 6( 1). It is apparent that even before the issue of the first notification Government had made up its mind to acquire the lands of the petitioners in as much as there was no enquiry in between the two notifications and no valid reason has been put forward why the details specified in the notification under s. 6(1) could not have been given in the one under s. 4(1). [282 G; 283 F-H]

Babu Barkya Thakur v. Stat.? of Bomba,v & Ors. [1961] 1 S.C.R. 128 and Smt. Somavanti v. State_ of Punjab, [1963) 2 S.C.R. 774, referred to.

CIVIL APP ELLA TE JUR,ISDICT!ON : . Civil Appeals Nos. 1192 and 1193 of 1967.

Appeals from the judgment and decree dated October 8, 1963 of the Allahabad High Court in Special Appeals Nos. 329 and 323 of 1963.

S. V. Gupte, J. P. Goyal and G. N. Untoo for the appellants ( iri both the appeals) . '

C. B. Agarwa/a and 0. P. Rana, for the respondents (in both the appeals) .

The Judgment of the Court was delivered by

Mitter, J. These two appeals by certificate from common judgment of the High .Court of Allahabad arise out of certain ·land acquisition.proceedings in the District of Rampur.

The facts relevant for the disposal of the appeals are as follows. On October 15, 1960 the Government of Uttar Pradesh issued notification purporting to be one under s. 4 ( 1) of the Land Acquisition Act, 1894 to the effect that "the land mentioned in the schedule is needed for public purpose." The notification further showed that "the Governor being of opinion that the provi-sions of sub-s. ( 1) of s. l.'./ of the said Act are applicable to the land, is further pleased under sub-s. ( 4) of the said section to direct that the provisions of s. 5-A of the Act shall not apply." The schedule to the notification reads as follows :-

"SCHEDULE

Note:-The plan of the lar.d may be inspected in the office o'."" the Collector.-Rampur."

This was followed by notification under s. 6 ( 1) of the Act

dated October 28, 1960. This notification shows that the Gover-nor was pleased to declare under s. 6 of the Act that he was satisfied that the land mentioned in the schedule was needed for public purpose and under s. 7 of the Act to direct the Collector of Rampur to take order for the acquisition of the land.

The case being one of urgency the Governor was further pleas-ed under sub-s. ( 1) of s. 17 of the Act to direct the Collector of Rampur, though no award under s. 11 has been made, on the-expiration of the notice ·mentioned in sub-s. n) of s. 9, to take possession of the land, being waste or arable land mentioned in the schedule for public purpose.

SCHEDULE

The petitioners-appellants before us filed writ petitions in the High Court on December 1, 1960. The appellant in Appeal No. 1192 of 1967 was the sole petitioner in Writ Petition No. 3274 of 1960 while his father, Ranjit Singh and two others, brothers of the petitioners were the applicants in Writ Petition No. 283 of 1961. The two writ i;>etitions, contained common <:omplair\ts. The case of the petitmners was that it was the Maharaja of Dewas with whom the petitioners had certain litiga-tion who was responsible for singling them out for the purported acquisition of their land for the rehabilitation of displaced fami-lies of East Pakistan. The first ground put forward in both the petitions was that the notice under s. 4 of the Act was invalid for non-compliance with the mandatory provisions of the Act render-ing the whole proceedings void. The points urged in support of the applications were turned down by the learned single Judge and Special Appeal therefrom to Division Bench met with no better fate. The learned Judges of the Division Bench noted that the exact land which was required by the State Government was not specified in the notification and that the petitioners had raised further objection that the notification under s. 4 was invalid because it had not been published at convenient places in the locality. The Division Bench relied on certain observations of this Court in Babu Barkya Thakur v. The State of Bom.bav and others(') to the effect that the notification under s. 4 was for the purpose of carrying on preliminary investigation with it view to · finding out after necessary survey and levels. and if necessary, digging or boring into the sub soil whether the land was adapted for the ourpose for which it was sought to be acquired. According to the Division Bench there was no substance in the pleas rai•ed on behalf of the petitioners and their appeals were therefore dis· missed.

(I) [19611 l S.C.R, 128.

Before us Mr. Gupte wanted to urge several points in .supP?rt of the appeals. His first contention was that the notificatio~ under s. 4 was not in compliance with the Act and therefore it should be struck down and the proceedings held to be illegal. Sub-s. (I) of s. 4 of the Act provides as follows : "Whenever it appears to the appropriate Government that land in any locality is needed or is likely to be need-ed for any public purpose, 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."

Sub-s. (2) of the section shows that it is only after compliance with the provisions of sub-s. (I) that the officers authorised by -Government can enter 11pon the land and carry on the operations mentioned therein. Section 5A gives persons interested in the land notified under s. 4(1) right to object to the acquisition. It is only after disposal of the objections that the State Government is empowered when ·satisfied after considering the report made under s. 5A thllt any particular land is needed for public purpose to make declaration to that effect and such declaration has to be published in the Official Gazette under sub-s. (2). In the nor-mal course after lands have been declared to be needed for pub-E lic purpose the appropriate Government may direct the Collector to take orders for the acquisition of the land. Thereafter the Collector may proceed under s. 8 to mark out the land covered by the declaration. Section 9 enjoins upon the Collector to cause public notice to be given at convenient places after compliance with the provisions of s. 8 that the'Government intends to take possession of the land and that claims to compensation for interest in such land may be made to him. Section 1 J enjoins upon the Collector to hear objections by persons interested after issue of notice under s. 9 to the measurements made under s. 8 and into the value of the land. It is only after compliance with the formalities of this section that the Collector has to make an award as to the true area of the land and the compensation to be allowed for the land as also the apportionment of the compensation among all the persons known or believed to be _interested in the land. The Collector after making an award may take possession of the land under the provisions of s. 16.

In cases of urgency however this elaborate procedure may be cut short. Under sub-s. ( 1) of s. 17 the Collector under the directions of the Government may be authorised in cases of urgency, on the expiration of 15 days from the publication of the n0tice mentioned in s: 9 sub-s. (I) to take possession of any waste

or arable land needed for public purpose and such land there-upon vests absolutely in the Government. Under sub:s. (2) of s. 1 7 the Collector may immediately after the publication of tlie notice mentioned in sub-s. ( 1) and with the previous sanction of the appropriate Government enter upon and take possession of the land if the same be needed owing to any sudden change in the channel of any navigable river or other unforeseen emergency it becomes I)ecessary for any Railway administration to acquire the immediate possession of any land or for incidental purposes. Sub-s. ( 4) of the section provides :

"In the case of any land to which, in the opinion of the appropriate Government, 'the provisions of sub-section (1) or sub-section (2) are applicable, the appro-priate Government may direct that the. provisions of. section 5A shall not apply, and, if it does so direct, declaration may be made under section 6 in respect of the land at any time after the publication of the notifi-cation under section 4, sub-section (1) ."

It becomes clear from perusal of the said sections of the Act that the process of acquisition must start with notification under s. 4. Even in extremely urgent cases like those m~ntioned in sub-s. (2) of s. 17, the notification under s. 4 is sine qua 11011. In some cases the Government may not follow up the notifica-tion under sub-s. (I) by further proceedings specially where it finds that the land was unsuited for the purpose for which it is required. But the issue of notification under sub-s. ( 1 1 of '· 4 is condition precedent to the exercise of any further powers under the Act and in our opinion notification which does not comply with the essential requirement of that provision of. Ia\\ must be held to be bad.Section 4 (I) does not require that the identity of the 1'1!\ds which may ultimately be acquired should be specified but it enjoins upon the Government the duty to specify the locality in which the land is needed. In the instant cases the notifications suffer from very serious defect in that the locality where the lands were needed was not "specified. The notification merely showed that lands men-tioned in the schedule were needed. The schedule in its turn though it contained the headings District, 'Pargana, Mauza and approximate area, gave no particulars of the same and all that was mentioned by way of note was that the plan of the land might be inspected in the office of the Collector of Rampur. As no details were given. the only indication about the Jocaliiy qf the lands was possibly the District of Rampur inasmuch as the · plan of the land was to be found in the oflice of the Collector o.f the same district. Certainly the Act did not intend that all the

persons owning land in district should rush to the Collector's office to find out whether his lands were covered by the notifica-tion.

It was urged before us that the notification was in terms of the section and that the petitioners could not complain inasmuch ·as the defect was remedied by the notification under s. 6 which was issued within fortnight after the s. 4 notification. In our view this contention cannot be accepted. Any notification which is the first step towards depriving man of his property must be strictly construed and courts ought not to tolerate any lapse on the part of the acquiring authority in the issue of such notification if it be of serious nature. In the case of Babu Barkya Thakur ( [1 ]) it was pointed out by this Court that

"The proceedings begin with Government notifica-tion under s. 4 that land in any locality is needed or is likely to be needed for any public purpose."

It is well known that person interested in the land which is affected by any notification under s. 4(1) may immediately object to it and take proceedings in court against it. In Smt. Somavanti v. State of Punjab(') one of the main questions before this Court was whether notification under s. 4 ( 1) and one under s. 6 ( 1) could be issued simultaneously. Although the Court took the view that where s. SA was not in the way there was no irregularity in publishing the notifications on the same day, yet it observed that:

"notification under sub-s. ( 1) of s. 4 is condition precedent to the making of notification under sub-s. (1) ofs. 6."

In our view the defect in notification under s. 4 ( 1) cannot be cured by giving full particulars in the notification under s. 6 (1). In this case it is apparent that even before the issue of the first notification Government had made up its mind to acquire the lands of the petitioners inasmuch as there was no enquiry in between the two notifications and no valid reason has been put forward to explain why the details .§pecified in the notification under s. 6 ( I) could not be given in the one under s. 4 ( 1 ) . The fact that. the petitioners did not go to court immediately after the publication of the first notification is not matter of any moment. The defects were not cured and cannot be glossed over by 1 eason of the fact that the petitioners went to court after the issue of the notification under s. 6 ( I) .

Moreover if it was the intention of the Legislature that in cases of urgency notification under s. 4(1) was not necessary, suitable provision would have been made in s. 17 for that purpose. The provisions of that section show that even in cases of extreme urgency like the maintenance of railway traffic by reason of any sudden change in the channel of any navigable river or other un-foreseen emergency, the Legislature only thought it fit to by-pass the provisions of s. 5A but not those of s. 4 sub-s. ( 1)