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A.P. Puranik and ors. Vs. the Sholpur Municipal Corporation and ors. - Court Judgment

LegalCrystal Citation
SubjectProperty
CourtMumbai High Court
Decided On
Case NumberSpecial Civil Appln. No. 1825 of 1968
Judge
Reported inAIR1973Bom160; (1972)74BOMLR769; ILR1973Bom175; 1973MhLJ105
ActsLand Acquisition Act - Sections 4(1), 5-A and 6
AppellantA.P. Puranik and ors.
RespondentThe Sholpur Municipal Corporation and ors.
Appellant AdvocateU.R. Lalit, Adv.
Respondent AdvocatePrakash S. Shah, Adv. and ;R.J. Joshi, Adv., i/b., Little & Co., Attorneys
Excerpt:
.....notice not given.;it is not necessary that the notification issued under section 4(1) of the land acquisition act, 1894, should be served individually on the owners or persons entitled to claim interest in compensation. if such persons neglect to take notice of the notice under section 4(1) of the act they cannot, after the period of limitation prescribed under section 5a(1) of the act, raise objections to the acquisition of the land and ask for a hearing on such objections on the ground that the notice under section 4(1) was not served upon them individually.;pillayya v. state [1969] a.i.r. mys. 240 and mohd. habibullah v. spl. dy. collector [1967] a.i.r. mad. 118 referred to.;by a notification issued under section 4 of the land acquisition act, 1894, five properties bearing.....k. k. desai, j.1. by notification issued under section 4 of the land acquisition act, 5 properties bearing c. t. s. nos. 8278/3, 8278/4, 8280/2, 8281/3 and 8281/4 situated at sholapur, we notified for acquisition as being needed for public purposes viz. municipal offices and road widening. individual notices were served about the above notification on one nigude, one shah and one keshavlal, who were the owners of these properties. the notifications were published in accordance with the provisions in sub-section (1) of section 4 in the official gazette in further pursuance of above provisions, the collector put up public notices of the substance of the notification at convenient places in the locality of the properties. in fact one such public notice was put up by affixing the same on the.....
Judgment:

K. K. Desai, J.

1. By Notification issued under Section 4 of the Land Acquisition Act, 5 properties bearing C. T. S. Nos. 8278/3, 8278/4, 8280/2, 8281/3 and 8281/4 situated at Sholapur, we notified for acquisition as being needed for public purposes viz. municipal offices and road widening. Individual notices were served about the above notification on one Nigude, one Shah and one Keshavlal, who were the owners of these properties. The notifications were published in accordance with the provisions in sub-section (1) of Section 4 in the Official Gazette in further pursuance of above provisions, the Collector put up public notices of the substance of the notification at convenient places in the locality of the properties. In fact one such public notice was put up by affixing the same on the compound wall of the properties bearing C. T. S. Nos. 8278/3 and 8278/4. The other three properties were in the same compound as the above C. T. survey numbers.

2. The two of the above properties are mentioned in the petitioner as Nirgude Chawls and Shah Chawls. Six of the petitioners and monthly tenants in Nirgude Chawls and six other petitioners are monthly tenants in Shah Chawls. The notification dated 6th April 1968 under Section 6 of the Act was issued for acquisition of these properties for the purposes of Municipal Offices. This notification was published in the gazette dated 2nd May 1968. This notification stated that the Commissioner had considered the report of the Collector under sub-section (2) of Section 5-A in respect of the objections raised against the acquisition of these properties. Thereafter public notice was published under Section 9 in respect of the acquisition of the properties. In August 1968, the present petitioners were personally served with individual notices under sub-section (3) of Section 9 as occupiers of the property under acquisition. The notice under Section 9 was for the purpose of inviting the occupiers and the owners to file their claims for compensation and to mention in their claims the nature of their interests in the land and the amount and particulars of the claims for compensation. The petitioners thereafter filed the present petition in this Court on September 9, 1968 under Articles 226 and 227 of the Constitution for preventing acquisition of the properties and for quashing the acquisition proceedings.

3. In support of the reliefs claimed. Mr. Lalit for the petitioners has contended that the authorities were bound to serve on the petitioners individual notices in respect of the notification issued under Section 4 of the Act. The petitioners had not been afforded statutory opportunity to raise objections to the acquisition of the properties as was compulsory under Section 5-A of the Act. He developed this contention by pointing out various objections that the petitioners could have made against the acquisition of these properties. He pointed out that there was no dispute between the parties that the petitioners were entitled to interest in compensation to be awarded upon acquisition of these properties; and that parties having such interest were entitled to service of individual notices under Section 9 of the Act.

4. In this connection, Mr. Lalit relied upon 'Manual of Land Acquisition', where under paragraph 30-A (c) acquisition officer is given instructions to follow certain procedure. In this paragraph it is stated that the Collector should give public notice of the substance of the notification published in the Gazette under Section 4 at convenient places in the locality in which the land is situate. Reference is then made to Government Resolution No. LAQ 2555 G dated 10th January 1956 and it is further stated 'Individual notices are not specifically prescribed in the Act but they are issued as a matter of practice in order to ensure that all individuals are informed. Such notices may therefore be dispenses xx xx xx Care should be taken to see that the public notice as well as the individual notice, if necessary given in this section is properly given.'

5. In reply, Mr.Joshi for the respondents 2 to 4 has argued that there is no provision in law compelling the Acquisition Officer and/or the Collector to serve individual notice in respect of the notification issued under Section 4(1). In fact, the provisions in Section 5-A go to show that objections must be made within the time prescribed under sub-section (1) of that section and that every person concerned ought to file objections within the prescribed time. Where service of notices on individuals was thought necessary, the legislature has made direct provisions for the purpose, as would appear from the contents of sub-section 93) of S. 9. He has argued that the legislature has thought it sufficient that the notification under Section 4 should only be brought to the notice of the public by publication in the Government Gazette and by publishing a public notice at convenient places in the locality. He also pointed out that to prevent individuals interested in compensation who might not have made any objections under Section 5-A from challenge the acquisition proceedings on the ground of failure of service of personal notice of the notification under Section 4 at extremely late date the legislature did not direct service of personal notice of such notification. He also explained that for many different cases it might he impossible for the Acquisition Officer to find out each and all persons who would be entitled to claim compensation. The language of Sections 4, 5-A, 6 and 9 indicated that individual notices need not be served on persons entitled to claim compensation in respect of the notification issued under Section 4.

6. In connection with these rival contentions it is necessary to notice the relevant parts of Sections 4, 5-A, 6, 9 and 45, which run as follows : -

'Section 4(1) Whenever it appears to the appropriate Government x x x 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.'

Sub-section 92) authorises the Officer to enter upon the premises situate on the properties needed for acquisition and proviso to this sub-section runs :-

'Provided that no person shall enter into any building or upon any enclosed Court or garden attached to a dwelling-house x x x without previously giving such occupier at least sever days' notice in writing of his intention to do so.'

5-A(1) 'Any person interested in any land which has been notified under Section 4, sub-section (1) as being needed or likely to be needed for a public purpose or for a Company may, within thirty days after the issue of the notification object to the acquisition of the land or of any land in the locality, as the case may be.'

Sub-section (2) of this section compels the Collector to give the objector an opportunity of being heard. Sub-section 93) provides that every person entitled to provides that every person entitled to claim an interest in compensation would have the right to raise objection to acquisition.

'6(1) x x x when the appropriate Government x x x x is satisfied, after considering the report, if any made under Section 5-A sub-section (2) that any particular land is needed for a public purpose, a declaration shall be made to that effect, x x x x.'

Under sub-section (2) the declaration is directed to be published in the Official Gazette.

'9 (1) : The Collector shall then cause public notice to be given at convenient places on or near the land to be taken, stating that the Government intends to take possession of the land, and that claims to compensation for all interests in such land may be made to him. (2) Such notice shall state the particulars of the land so needed and shall require all persons interested in the land to appear personally x x x and to state the nature of their respective interests in the land and the amount and particulars of their claims to compensation for such interests x x x. (3) The Collector shall also serve notice to the same effect on the occupier (if any) of such land and on all such persons known or believed to be interested therein x x x x.'

Section 45 relating to service of notices runs as follows :

'Section 45(1) Service of any notice under this Act shall be made by delivering or tendering a copy thereof signed, in the case of a notice under Section 3-A or 4 by the officer therein mentioned, and in the case of any other notice x x x.

(2) Whenever it may be practicable, the service of the notice shall be made on the person therein name.'

7. These are all the relevant provisions in the Act. It is important to notice that power created under sub-section 92) of S. 4 to enter upon the properties intended to be acquired must under the proviso to the sub-section be exercised only after service of individual and/or personal notice in writing and of seven days. Section 45 provides that this notice must be delivered to the relevant person. On the contrary the notification issued under sub-section (1) of Section 4 is directed to be published in the Official Gazette and to be notified by causing public notice of the substance of such notification to be given at convenient places in the locality. As regards the notification issued under sub-section (1), statute does not direct that notice of the notification should be served on the owners or on persons entitled to claim interest in compensation. The first submission made by Mr.Lalit is accordingly not based on any statutory provision. In this connection, by way of contrast it may be noticed that under sub-section (3) of S. 9 Collector is directed to serve notices on occupiers and those having interest in compensation. Mr. Joshi is, therefore, right in his submission that if the legislature had so intended , similar provisions could have been made in connection with the notification issued under sub-section (1) of S. 4. The first contention of M. Lalit is accordingly negatived.

8. There is no dispute between the parties that the petitioners are persons who claim interest in compensation. Apparently for this reason under sub-section (3) of S. 9 notices inviting claims for compensation were served on the petitioners in this case. It is, therefore, true that the petitioners are persons as defined under sub-section (3) of S. 5-A and that the petitioners as such had the right to raise objections to the acquisition of the properties. The petitioners were accordingly entitled to an opportunity of a hearing in accordance with the provisions in sub-section (2) of S. 5-A in respect of objections which might have been filed by them. It is also true that notification of declaration under Section 6 for the acquisition of the properties could not have been issued except after consideration of the report in respect of the objections filed under Section 5-A had been made by the Acquisition Officer. Apparently, if the petitioners' case is true, the petitioners have lost the opportunity to raise objections under sub-sections (1) and an opportunity of hearing such objection under sub-section 92) of S. 5-A. This fact has resulted, according to the petitioners, because notices in respect of the notification under Section 4 had not been served on the petitioners. The question is whether Mr. Lalit is right in his submission that for the above reason, the notification under Section 6 is liable to be set aside. In this connection, it is important to remember that objections under Section 5-A are directed to be filed within 30 days after the issue of the notification under sub-section (1) of Section 4. Persons claiming interest in compensation would lose and would not be entitled to raise an objection upon expiry of 30 days of issue of notification under sub-section 91) of S. 4. The limitation period of 30 days prescribed in sub-section 91) of S. 5-A reflects the anxiety of the legislature that the proceedings for acquisition should not be frustrated by affording any larger time to the parties concerned in connection with the objection that they may intend to raise. The legislature must be aware that the right to raise objection under sub-section (1) must depend on the knowledge of the interested parties of the notification issued under sub-section 91) of S. 4. Apparently, persons claiming interest in compensation may remain ignorant of the notification issued under sub-section (1) of S. 4, in spite of the publication of the notification in the official gazette and the public notice put up at convenient places in the locality. Being aware of that situation, the legislature did not provide for service of notice of the notification under sub-section (1) of S. 4 individually on persons claiming interest in compensation. it is important in this connection to notice that for inviting claims for compensation under Section 9, the legislature by sub-section (2) of that Section directed service of notice on individuals claiming interest in compensation. In the context of provisions in Sections 4. 5-A, and 6 we are unable to accept Mr. Lalit's submission that the petitioners have been deprived of the right to raise objections and to a hearing in that connection under Section 5-A. If they have lost such right and/or opportunity, the same must be held to be the result of their negligence in not taking notice of the public notice of the intended acquisition put up at convenient places in the locality in accordance with the provisions in sub-section (1) of S. 4. By Section 5-A the rights were not intended to be created in favour such negligent parties. In this connection, we have to repeat that we are not in a position to hold that the case of the Government that public notice of the notification under Section 4 in this case was put on the compound wall of the properties bearing C. T. S. No. 8273/3 and 4. The result of the above discussion is that the submissions made by Mr. Lalit cannot be accepted.

9. In this connection, reference may be made to the decision of the High Court of Mysore in the case of Pillayya v. State, AIR 1969 Mys. 240, wherein similar view has been taken regarding the true construction of the effect and provisions of Section 5-A In the case of Mohamed Habibullah v. Spl. Dy Collector, : AIR1967Mad118 a Division Bench of the High Court of Madras has also taken a similar view of the provisions of the above section.

10. In the result, the rule is discharged. The petitioners are small men and accordingly there will be no order as to costs.

11. Rule discharged.


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