G.D. Sahgal, J.
1. This is a petition under Article 226 of the Constitution praying for a writ of mandamus commanding the respondents, namely, the State of Uttar Pradesh and the Collector of Lucknow not to take acquisition proceedings regarding the land mentioned in the notifications (copies contained in annexures 1 and 2) and not to disturb the possession of the petitioner over that land.
2. A notification was issued on the 21st of November, 1966 by respondent No. 2, the Collector of Lucknow under Subsection (1) of Section 4 of the Land Acquisition Act, 1894 (Act 1 of 1894) under which the respondents proposed to acquire an approximate area of 22 acres, viz. 9500 square feet from plot No. 163, situate in Hazratganj, Lucknow the plan as to which could be inspected at the office of the Collector of Lucknow. A notification was thereafter issued on the 8th of May, 1967 under Section 6 of the Act along with a notification under Subsection (1-A) of Section 17 of the Act as amended in its application to Uttar Pradesh directing the Collector of Lucknow, though no award under Section 11 had been made, on the expiration of 15 days from the publication of the notification under Sub-section (1) of Section 9 to take possession of the land. The land belongs to the State of Uttar Pradsh, opposite party No. 1, the interest of the petitioner being of a lessee, the lease having been granted to him on the 1st of June, 1939 of an area of 10 Bighas 19 biswas 16 biswansis 5 kachwansis out of the plot No. 163 for a term of 90 years from the 1st of June, 1939. The area which is sought to be acquired by the notifications, above referred to, is said to be part of that land of which lease has been granted to the petitioner. This fact is not disputed.
According to the petitioner, the notifications under Sections 4 and 6 of the Land Acquisition Act gave only an approximate area of 9500 square feet to be acquired and the plan which could be inspected in the office of the Collector shows the land as 100' x 100'. The land, however, has not been measured so far when it should have been measured under Section 8 of the Land Acquisition Act. The case of the petitioner is that in spite of the mandatory provisions of law that the land should be measured, the Collector has issued notice under Section 9 of the Act without its being measured. The land, it is said, has also not been marked out on the spot as should have been done under Section 8 of the Land Acquisition Act. As such it is said that any proceeding for the acquisition of the land without the land being measured and marked out on the spot was without jurisdiction, illegal and ultra vires. The notice under Section 9, also, therefore, was invalid on account of the omission to measure and mark the area proposed to be acquired. It is in these circumstances that the writ petition has been filed with the prayer, referred to above.
3. The allegation that the land has not been measured and that it has not been marked out on the spot is contained in paragraphs 5 and 5A of the petition. In the counter-affidavit with respect to paragraph 5 it is not stated that the land has been got measured, but what has been stated is that the land proposed to be acquired has been marked in the plan as measuring 100' x 100' and that it is in the shape of a rhombus and the area so calculated comes approximately to 9500 square feet. The way in which the area has been calculated is to be found in Appendix A where it is shown to be 9503.57 square feet, say 9500 square feet. As to the allegation in paragraph 5A that the land has not been marked out on the spot, the counter affidavit claims that it was measured, planned and marked out under Section 4 of the Land Acquisition Act for purposes of acquisition and as it was not necessary again to mark it out under Section 8 when it had already been marked out under Section 4, the re-measuring has not been done. This is contained in paragraph 2 of the counter affidavit dated the 20th/22nd of June, 1968 filed by one Shiva Narain. This paragraph has been sworn from information based on the record maintained in the office.
There is a copy of a letter attached to Annexure A filed on behalf of the respondents issued from the Executive Engineer to the Special Land Acquisition Officer, Nagar Mahapalika indicating that the land was measured out in the presence of Shiva Narain Amin of the Nagar Mahapalika on the 27th of June, 1967. The notice under Section 9, copy of which is contained in Annexure B, however, which purports to be signed by the same Shiva Narain Amin, shows that it is of a date prior to the 27th of June, 1967, when according to the letter above referred to it was measured by Shiv Narain Amin. The affidavit of Shiva Narain to the effect that the land had been measured, planned and marked out under Section 4 of the Land Acquisition Act for purposes of acquisition is dated the 20th of June, 1968 and is sworn from information based on record. In view of the affidavit of the petitioner stating categorically to the effect that no measurement was done of the land nor was it marked out on the spot, this affidavit of Shiva Narain, based as it is only on information derived from records which have not been produced, is not sufficient to rebut it. Moreover, the letter accompanying Annexure A supports, the petitioner's case that the measurement, if any, was done after the notice under Section 9 had already been issued.
4. The relief is claimed on behalf of the petitioned on two grounds. Firstly, it is pointed out that there could be no acquisition of land which belonged to the Government and that the interest of the petitioner which was only that of a lessee could not be acquired because the Land Acquisition Act contemplates acquisition of the land itself and not of any interest therein. The second ground is, as already mentioned, that there has been no marking out of the land or measuring of the same at the Section 8 stage and as such no notice could be issued under Section 9 and any further proceeding would be against the provisions of the Act.
5. Let us examine the two contentions one by one.
6. Sub-section (1) of Section 4 of the Act provides that whenever it appears to the appropriate Government 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. The term 'land' has been defined in Clause (a) of Section 3 as follows:
'the expression 'land' includes benefits to arise out of land, and things attached to the earth or permanently fastened to anything attached to the earth'.
The contention is that as 'land' includes benefits to arise out of land and things attached to the earth or permanently fastened to anything attached to the earth, the latter form part of the land and are not separate from the land. So what can be acquired is only land and not benefits to arise out of land, and thingsattached to the earth or permanently fastened to anything attached to the earth and as they form part of the land and are not separate from it, they do not come within the definition of the term 'land'.
7. A careful perusal of Clause (a) of Section 3, however, will indicate that the argument is not tenable. This Clause provides that the 'expression' 'land' includes benefits to arise out of land etc., (The underlining (in single quotation marks here, Ed.) is mine). The definition is of the expression 'land' and not of 'land'. If it had been the definition of the 'land' itself, then it could be said that land includes in it benefits to arise out of land, and things attached to the earth or permanently fastened to anything attached to the earth, as forming part of it. But when it is said that the expression 'land' includes benefits etc., it means that, that expression connotes benefits to arise out of land, and things attached to the earth or permanently fastened to anything attached to the earth also which may be independent of the land.
8. We, have, however, high authority also for the proposition that what can be acquired is not only land but interest in land also apart from land. In Collector of Bombay v. Nusserwanji Rattanji Mistri : 1SCR1311 it is pointed out by the Supreme Court:
'............... when the Government acquires lands under the provisions of the Land Acquisition Act, it must be for a public purpose, and with a view to put them to that purpose, the Government acquires the sum total of all private' interests subsisting in them. If the Government has itself an interest in the land, it has only to acquire the other interests outstanding therein, so that it might be in a position to pass it on absolutely for public user.'
Further on, the following observations of Batchelor, J. in In the matter of the Land Acquisition Act: Govt. of Bombay v. Usufali Salebhai, (1910) ILR 34 Bom 618 at p. 636 were quoted with approval;
'In other words Government, as it seems to me, are not debarred from acquiring and paying for the only outstanding interests merely because the Act, which primarily contemplates all interests as held outside Government, directs that the entire compensation based upon the market value of the whole land must be distributed among the claimants'.
This position has recently been reiterated in Special Land Acquisition and Rehabilitation Officer, Sagar v. Seshagiri Rao : 2SCR892 where, apart from quoting from Batchelor, J. more exhaustively, the following remarks find place:
'............The Act is, it is true, silent as to the acquisition of partial interests in the land, but it cannot be inferred therefrom that interest in land restricted because of the existence of rights of the State in the land cannot be acquired. When land is notified for acquisition for a public purpose and the State has no interest therein, market value of the land must be determined and apportioned among the persons entitled to the land. Where the interest of the owner is clogged by the right of the State, the compensation payable is only the market value of that interest, subject to the clog.'
The words, namely, 'interests as clog the right of Government' are also to be found in the Bombav case, above referred to. In the judgment of Chandavarkar, J. with whom Batchelor, J. sat in that appeal, we find:
'................... To acquire a land is not necessarily the same thing as to purchase the right of fee-simple to it, but means the purchase of such interests as clog the right of Government to use it for any purpose they like.'
Again the same learned Judge further states:
'......... The use of the inclusive verb 'includes' shows that the legislature intended to lump together in one single expression -- viz., 'land' -- several things or particulars, such as the soil, the buildings on it, any charges on it, and other interests in it, all which have separate existence and are capable of being dealt with either in a mass or separately as the exigencies of each case arising under the Act may require.'
9. It would thus appear that even though the land itself belonged to the Government, the petitioner having only lease-holder's rights therein, the lease hold-interests could be acquired as they come within the definition of the expression 'land'.
10. In view of the above strong authority of the Supreme Court, the two cases cited on behalf of the petitioner, namely, Shyam Chunder Mardraj v. Secretary of State (1908) ILR 35 Cal 525 and Dashrath Sahu v. Secretary of State AIR 1916 Pat 330 (1) are no longer good law.
11. On the first point, therefore, the petition fails.
12. Let us examine the second point.
13. Under Sub-section (2) of Section 4 after the notification under Sub-section (1) of Section 4 has been made, it shall be lawful for any officer, either generally or specially authorized by such Government in this behalf, and for his servants and workmen to enter upon and survey and take levels of any land in such locality and to set out the boundaries of the land proposed to be taken and to mark such levels, boundaries and line by placing marks and cutting tranches etc. It means that after notification under Sub-section (1) of Section 4 the land sought to be acquired can be surveyed and the boundaries marked on the spot. In this case' though the case of the petitioner is that no marking out on the spot had been done before the notice under Section 9 was issued, the case of the respondent is that this was done at Section 4 stage. But as I have already pointed out from, the affidavits, counter-affidavits and the evidence contained in annexure A, what appears to have been done is that the land was marked out in the plan kept at the Collector's office as an equilateral rhombus having each side as 100'. Even the plan is on the record, being part of annexure A, but there does not seem to have been made any measurement on, the spot for marking out the boundaries there which cannot take the place of what is contemplated under Sub-section (2) of Section 4.
Then after the notification under Section 6 which is a notification of declaration that the land is required for a public purpose, under Section 7 the Government or some officer authorised by the Government shall direct the Collector to take order for the acquisition of the land, and after this has been done, the Collector shall cause the land, unless it has already been marked out under Section 4, to be marked out. He shall also cause it to be measured, and if no plan has been made thereof, a plan to be made of the same. What is required at this stage, therefore, is that the land has to be marked out unless it has already been marked out under Section 4 and the marking out, as I have already pointed out, is the marking out of the land on the spot. It further provides for the measurement of the land and for the preparation of a plan, if one has not been made. The plan had no doubt been made in this case which was available for inspection at the office of the Collector after the notification under Sub-section (1) of Section 4, but there does not appear to have been any marking out of the land under Section 4 or under Section 8 nor any measurement thereof. It is only when this has been done that the Collector can cause notice to be given under Sub-section (1) of Section 9 or under Sub-section (2) can issue notice to any occupier of the land, or person believed to be interested in the land.
The notice in question has been issued before the marking of the land on the spot and its being measured on the spot. This is a very important stage before notice is issued. The showing of the land in a plan may not exactly give an idea to the person interested after inspection at the office of the Collector as to which portion of the land is actually required, for there may be different interpretations of the plan, but the marking out of land on the spot brings out the whole thing clear without any doubt as to which portion of the land is actually required to be acquired and its measurement also gives an idea as to how much of the land is required, and any one who claims that land or any interest in that land comes to know about it. This is a very important stage and under the law has to be taken prior to the notice being issued under Section 9. As this procedure has not been followed, the issue of the notice under Section 9 was not proper. The notice has, therefore, to be quashed.
14. The petition is accordinglyallowed and the notice contained in annexure 3 quashed. The respondents aredirected not to proceed with the landacquisition proceedings in pursuance ofthe said notice.