1. This second appeal arises out of a suit filed by the plaintiff for recovering non-agricultural assessment levied on the land in suit. The Provincial Government of Bombay is defendant 1 to the suit and the District Local Board of Dharwar is defendant 2. Both the Courts below have dismissed the plaintiff's suit.
2. It would appear that the plaintiff is the inamdar of a moiety of the village of Hole Alur in Ron Taluka, and the land in suit, survey No. 161B, forms part of the moiety belonging to the plaintiff. On 16th April 1923, the Government of Bombay passed a resolution deciding to acquire this land for a public purpose, the purpose being the erection of a school to be run by the District Local Board. Acquisition proceedings were started and they ultimately terminated in an award being made on 2nd October 1923. Under this award, a sum of Rs. 1368-80 was paid to one Angadi whose predecessor-in-title became a permanent tenant, the land having been leased to him by a predecessor-in title of the plaintiff. Owing to financial stringency, the school was not built and the Local Board let out the land for non-agricultural purposes. Thereupon non-agricultural assessment was levied upon the Board by Government and it is this assessment which the plaintiff claims in the suit. The plaintiff's case was that no notice was served upon him under Section 9(3) of the Land Acquisition Act. Therefore the award was void and his right in the land was not affected either by the acquisition proceedings or by the award which was ultimately made. Therefore, according to the plaintiff, he continues to be the inamdar of this land and as such inamdar he is entitled to the assessment levied by Government.
3. The facts are few and not in dispute. A public notice under Section 9(1) was issued by the Collector and this notice has to be given stating that Government intends to take possession of the land and that claims to compensation for all interests in such land may be made to him. It is also not disputed that no notice under Section 9(3) was given by the Collector to the plaintiff. Section 9(3) provides that :
'The Collector shall also serve notice to the same effect (as mentioned in Sub-clause (1)) on the occupier (if any) of such land and on all such persons known or believed to be interested therein, or to be entitled to act for persons so interested, as reside or have agents authorised to receive service on their behalf, within the revenue district in which the land is situate.'
It will be noticed that an obligation is cast upon the Collector to serve a notice on every occupier of the land which is to be acquired. There is also an obligation cast upon him to serve a notice on persons who are known to him to be interested in the land or whom he believes to be interested in the land. Therefore the Legislature has made a clear distinction between occupiers of the land and persons who are interested in the land. As far as occupiers are concerned, the Collector must serve a notice upon the occupier. As far as persons interested are concerned, the obligation is cast upon him only if he knows of such persons or believes that there are such persons. With regard to the first class the obligation is absolute; with regard to the second class the obligation is not absolute but is relative and it only arises provided the Collector has knowledge or belief with regard to the existence of the second class of persons. Therefore it is clear that a person who has not been served with a notice under Section 9(3) and who is interested in the land to be acquired can only have a grievance provided he satisfies the Court that the Collector wilfully or fraudulently or perversely omitted to serve the notice contemplated by Section 9(3).
4. In order to understand what would be the effect of a failure to serve such a notice, one must look to the scheme of the Act. Under Section 12, the award of the Collector is made conclusive and final, and under Section 16 the land which is acquired vests absolutely in the Crown free from all encumbrances. Therefore, when the award was made and possession was taken of this land, it vested in the Crown, and the question that we have to consider in this appeal is whether on the facts established it is open to the plaintiff to challenge that award. The only fact that he has established is that he is a person interested in the land, being an inamdar of that land. He has neither alleged nor proved anything more than that. The record of rights of the village did not show the name of the plaintiff as being one interested in the land. The record of rights only showed the name of the occupier Mr. Angadi who was the permanent tenant, and therefore a notice was served upon him and compensation was paid to him as the parson solely interested in the land. Mr. Gumaste for the plaintiff has contended that the Land Alienation Register would have clearly shown to the Collector or to the Government Officers that the plaintiff was interested in this land. But unfortunately for the plaintiff there is no allegation in the plaint at all either that the omission of the Collector to serve notice was wilful or perverse or even that the Collector could by due diligence have found out that the plaintiff was interested in the land. In our opinion, it is clear on a construction of Section 9(3) that the burden is upon the person who challenges the award which has become final and conclusive and under which the property has vested in the Crown to establish that the failure to give him notice under Section 9(3) was wilful or perverse or fraudulent failure on the part of the Collector. It is not sufficient merely to establish the fact that notice was not served. 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. But 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. Something much more has got to be alleged and proved, and that is that the omission was wilful or perverse or fraudulent, and in this case there is no such allegation and no evidence which would entitle the Court to come to that conclusion. It is on this narrow ground that both the Courts below have come to the conclusion that the plaintiff is not entitled to succeed.
5. Turning to the authorities on which Mr. Gumaste relies, there is first the decision of the Calcutta High Court in Ganga Ram v. Secretary of State, 30 Cal. 576. There a Division Bench of that Court came to the conclusion that the property vested absolutely in the Government after an award even when no special notice as required by Section 9(3) of the Act had been served on persons known or believed to be interested therein. Mr. Gumaste has pointed out that in that particular case it was found as a fact that the person challenging the award had knowledge of the acquisition proceedings, and Mr. Gumaste wants us to read the judgment as deciding that it is only when the person challenging the award had knowledge of the proceedings that he could not challenge the award merely on the ground of omission of notice under Section 9(3). In our opinion, the ratio of the case is not dependent upon that particular fact found in the case. The ratio is to be found in the judgment appearing at p. 579, and this is what the learned Judges say :
'Where it is known or believed that a parson is interested and yet the Collector wilfully and perversely refuses to give him notice, then his proceedings cannot be considered bona fide and should be held to be colourable and therefore inoperative in vesting the land in the Government .....'
Therefore, it is only colourable and mala fide proceedings which prevent the land under acquisition vesting in Government. But where the proceedings are bona fide and not colourable, Section 16 must have its full effect, and it is only when the action of the Collector is perverse or he wilfully refuses to give notice as required by Section 9(3) that it could be said that the acquisition proceedings are vitiated and the property does not vest in Government under Section 16. Mr. Gumaste has relied on a decision of the Patna High Court in Soma Singh v. Jaigobind Pande .A. I. R 1935 Pat. 42. In that case the plaintiff filed a suit claiming a share in the compensation which had been awarded to the defendant. The plaintiff was an occupier and no notice was served upon him under Section 9(3), and the question which both the Courts considered was whether the plaintiff was entitled to maintain the suit, and Verma J. of the Patna High Court in second appeal confirmed the view of the two lower Courts. In the course of his judgment the learned Judge stated (p. 43):
'Now, if this notice was not served upon the plaintiff, he was certainly justified in questioning the correctness of the award, because it is chiefly with the object of protecting Interests like his that Clause (3) to Section 9 has been enacted.'
It is important to note that the Court there was dealing with the case of an occupier, and as we have pointed out earlier, the case of an occupier is clearly distinguishable under Section 9(3) from the case of a person who is not an occupier but who is interested in the land, and the case before us is not that of an occupier but that of a person interested. Apart from that, the whole of the judgment of Verma J. turned really on the question of limitation. What was principally argued before the Court was whether the suit was within time. Therefore, we do not read this Patna judgment as an authority for the proposition for which Mr. Gumaste contends. Then reference has also been made to a judgment of the Madras High Court in Kasturi Pillai v. Municipal Council, Erode 43 Mad. 280: A. I. R 1920 Mad. 417. The headnote seems to suggest that the Madras High Court has gone so far as to decide that even in the case of an occupier failure to serve notice would not make the award void. But when we read the judgment, which is a very short judgment, of Bakewell J. we find that the judgment does not wholly bear out the headnote. Apart from that, in the particular case, it was found that the party had a notice of the award under Section 12 and the Court held that his remedy was to apply for a reference under Section 18 and the Act did not give him any other remedy. Then the learned Judge towards the end of his judgment refers to the case of Ganga Ram v. Secretary of State 30 Cal. 576 with which he agrees. Therefore, it is not necessary to read this judgment as implying or suggesting that even an occupier would be bound by an award in respect of which no notice wag given to him under Section 9(3) and where he had no knowledge of the acquisition proceedings.
6. We also wish to make it clear that in a proper case the Collector might be faxed with constructive notice of the existence of a person who is interested in the land, and if the Collector fails to make proper inquiries with regard to the existence of such a person, the Court may come to the conclusion that the omission to serve notice was wilful. After all, as rights of subjects are affected, it is the duty of Government Officers to take proper care that inquiries are made to find out all the persons who are interested in the land which is sought to be acquired, and it may not lie in the mouth of the Collector to say in a proper case that the mere fact that the name of a person interested did not appear in the record of rights was sufficient to entitle him to make no other inquiry and to proceed with the acquisition without serving any notice under Section 9(3). But as I said earlier, unfortunately in this there is not even an allegation that the Collector failed to take proper care in inquiring as to whether the village had been alienated and whether the plaintiff was an inamdar of the village.
7. As we feel that the plaintiff had a right in this land and he has not been paid any compensation with regard to that right, the fairest order that we can make with regard to costs is that there will be no order as to costs throughout.