1. By this petition under Articles 226 and 227 of the Constitution, land acquisition proceedings taken in hand by the State Government to acquire certain land belonging to the petitioners in village Chawani of tahsil and district Durg have been challenged as illegal and void and issue of appropriate writ has been claimed to put an end to the said proceedings.
2. Briefly stated the relevant facts giving rise to this petition are these. By a notification dated 16-5-1949 issued under Section 4(1) of the Land Acquisition Act (hereinafter called 'the Act') the State Government declared that lands in certain villages including the village Chawani was likely to be needed for a public purpose namely the erection of Iron and Steel plant. After necessary inquiry some land in village Chawani was acquired in the year 1956. Thereafter no further land in particular was proposed to be acquired in village Chawani, although lands in other villages for the same purpose were declared needed in the year 1955. We are however, not concerned with the lands in those villages. Then all of a sudden a notification dated 2-8-1960 was issued under Section 6 of the Act proposing to acquire further 486-17 acres of land in village Chawani as also in other two villages Supela and Kosa and the area as was proposed was demarcated and shown on the map kept in the office of the Collector, Durg, for inspection. The said notification also further announced as required by Section 17(4) the decision of the State Government that provisions of Section 5A of the Act shall not apply to the proceedings.
3. It is this notification of the year 1960 under Section 6 of the Act that is being impugned as being void not being preceded by any fresh notification under Section 4(1) of the Act with respect to further acquisition thereunder, the prior notification eleven years back in the year 1949 under Section 4(1) not being subsisting and available. It is the case of the petitioners that on a fair construction of the relevant provisions of the Act, the State Government once for all has to determine what particular area in the village notified under Section 4(1) of the Act, it would acquire and to riotify the same further under Section 6, and once that is done no further area in that particular village is liable to be notified afresh under Section 6 of that Act without a fresh notification under Section 4(1) and fresh enquiry under Sections 5 and 5A of the same. The notification under Section 4(1), it is suggested exhausts itself and is rendered ineffective by the notification under Section 6 and acquisition of land in pursuance thereof. This, it is contended, is the normal rule one gets on a fair reading of the scheme of the Act and is not liable to be departed from, especially where the decision to acquire any particular area in the village notified is being taken after a lapse of years as in the instant case of 11 years. The obvious infirmities inherent in such delayed action it is submitted, not being liable to be remedied in terms of the provisions of the Act could never be intended to be countenanced also by the framers of the Act. Hence, it is prayed that the acquisition proceedings. in pursuance of the notification dated 2-8-1960 under Section 6 of the Act be wholly struck down as ultra vires.
4. The State has joined issue with the petitioners on all the contentions raised in the petition. It has however, urged that petitioners having taken part in the proceedings before the Land Acquisition Officer, and having got him to make a reference under Section 18 of the Act not being satisfied with his award, are not now entitled to claim quashing of all that transpired by invoicing the extraordinary writ jurisdiction of this Court. The petition was Claimed to be liable to be dismissed on the ground of delay and acquiescence.
5. We gave our most anxious consideration to the submissions made by both the parties, and in the view we take of the provisions of the Land Acquisition Act we are inclined to agree with the contentions raised by the petitioners which are also fortified by the views expressed in the case of Corporation of Calcutta v. Omeda Khatum Bewa, AIR 1956 Cal 122. Our reasons are as in the following paragraphs.
6. Before we proceed to state our reasons for agreeing with the contentions of the petitioners it will be proper to state, in brief, the scheme of the Act in general. The Act creates a right in the appropriate Government to acquire land needed for public and other purposes; that it confers upon the private individual whose land is thus compulsorily acquired a corresponding right to receive compensation therefor; and while the Act provides for a summary determination by the Collector of the area, and value of the land and the apportionment of its compensation, it also provides for a judicial determination of the same by a Special Civil Court. Now in this general scheme the first step is as provided under Section 4 of the Act whereby the appropriate Government makes known to the public by issue of a notification in the official gazette its own opinion that land in any locality is needed or is likely to be needed for any public purpose, and a substance of the said notification is further caused to be made public by issue of a notice given at convenient places in the locality affected. This issue of a notification under Sub-section (1) is a prerequisite condition to enable the officers concerned and authorised by the Government to lawfully do all that is provided for in Sub-section (2) thereof.
7. Apart from deciding the suitability or otherwise of the land in the locality for the purpose the officers authorised have further to set on_the boundaries of the land proposed to be taken. The notification under Section 4(1) serves, therefore, two-fold purpose. It is firstly a nublic announcement that the land is needed or is likely to be needed for public purpose and secondly it authorises certain officers to proceed to do some acts in order to ascertain what lands are suitable and may have to be taken. Here it will be pertinent to note that before the amendment of the Act in the year 1923, the words 'is needed or' were not there in the section. The result was that the powers under the section were toeing used only when the land was likely to be needed requiring a preliminary survey to determine the requirements, and in cases where Government had already determined to acquire any particular land) provisions of Section 4 of the Act were not availed of and the first notification of the fact that the Government intended to acquire land was given under Section 6 of the Act. But after the amendment now prior notification under Section 4(1), survey and determination of extent of requirements, and an opportunity to the persons interested to object to the acquisition under Section 5A is now compulsory whether the land is presently needed or is likely to be needed in future. This, in oUr opinion, has a considerable bearing on the consequence resulting from the notification issued under Section 6 of the Act.
8. The words 'land in any locality in Sub-section (1) indicate that till the reconnaissance by the officers in the manner provided in Sub-section (2), it is not possible to state what particular lands in that locality would be most suitable from the point of view of the public purpose. That is the reason why no elaborate details about the land etc. are required to be stated in the notification under Section 4. So when the Government decides to issue a notification under Section 6 atter having considered the report submitted to it under Section 5A, it arrives at a decision as to which particular land in the locality already announced is needed, and then proceeds to acquire that particular land. That is the reason why the notification under Section 6 must contain all the details of the land decided to be acquired. The difference between Sections 4 and 6 is that whereas the former refers to land in a particular locality, the latter contemplates a particular land.
9. Now after being satisfied as to the desirability and suitability of any particular land for the public purpose, and after having fixed the extent of land, the Government issues orders to proceed with the acquisition of the same, and in accordance with the provisions of the Act the land is acquired and paid for. Here in connection with the determination of the acquisition price, it will be pertinently note that among other considerations in Section 23 of the Act affecting the price, the market value of the land sought to be acquired will be that which was prevailing at the date of the publication of the notification under Section 4(1) of the Act, and not prevailing at any time subsequent to it. If, therefore, the question as to the value of the land falls for determination, which necessarily arises after notification under Section 6, after a lapse of considerable period, the land-owner has to be paid at the rate prevailing on the date of first notification. True, that by making such a provision a fair market value is paid to the landowner, and he is not to be permitted to make any undue profit arising out of any increase in the value as a result of the public purpose itself. Ordinarily there is very little time lag between the first notification under Section 4(1) and the second notification under Section 6 and proceedings in pursuant thereto.
10. Now the unfairness of this provision and irreparable injury to the landowner therefrom would be apparent when either there is a considerable lapse of period between the said two stages or as in the instant case when the acquisition is taken in hand piecemeal, after an interval of 11 years. The petitioners-landowners are apparently being offered in 1960 market value of their lands prevailing in the year 1949. In our opinion, wnen a person could not be deprived of his property without being compensated for, it would be simply inconceivable that the Legislature had made no adequate provisions to safeguard that valuable right of the landowner. If, therefore, the provisions in the matter have to be treated as providing sufficient protection for the same, necessarily the provisions of the Act will have to be so interpreted and given effect to as to further that object rather than to defeat it. We should not be understood to suggest that the provisions in clause firstly of Section 23 of the Act are in any manner unfair or bad in law in its own terms. What we are trying to show is that its tendency to be likely to operate unfairly must have been in the view of the framers of the law, and hence the law has to be interpreted and given effect to in such a manner as to leave no scope or occasion for that provision to operate in any prejudicial manner, neither to the acquirer nor to the land-owner, who is being deprived of his property.
11. Now, therefore, if the aforesaid Object is kept in view it will be clear that the first thing that the Government has to bear in mind is that there should not be any unreasonable time lag between its first notification under Section 4(1) of the Act, and the period when it actually proceeds to acquire the land, and secondly it should decide once for all what particular land is needed or is likely to be needed for the public purpose in view. A little well-thought out planning ahead would be quite adequate in the matter. As a matter of fact, in our opinion, the provisions of Sections 4 and 6 specially provide for such a Planning. At any rate, they have to be so interpreted as providing for such a procedure, especially when they are not to be so interpreted as to. allow the unfair result, already referred to, to ensure. There appears to be apparently no necessity of survey and demarcation of the area found suitable as provided in Section 4(2), and no necessity to announce under Section 6 the extent of the area decided upon to be acquired. If the framers of the Act are to be understood to confer powers on the Government to acquire land at any_ time, the State Government may well issue today a notification under Section 4(1) of the Act stating therein that land in the whole of the State is needed or is likely to be needed for public purpose and then go on merrily acquiring lands anywhere and in any quantity thereafter till the doom's day at the price prevailing on the date of notification. We do not think it will be fair and correct to ascribe such an intention to the framers of the law.
We do not feel disposed to accept that in the absence of any legal provisions prohibiting piecemeal acquisition it has to be accepted as permissible. Ex-proprietory law has to be interpreted and implemented very strictly within its own terms and in furtherance of its object. Just visualise the position of the petitioners since the publication of the notification under Section 4 (1) in the year 1949. During all these 11 years they had but a qualified ownership or enjoyment of their property. They could not improve the land or build upon it; if they have a House they could not rebuild or repair it, however urgent the necessity of doing so might have been, without the strong probability of getting no return for the money so laid out if the Government were to have taken it ultimately. This suspense could never be intended by the framers of the law to be held over their heads for an indefinite, or for the matter of that for an unreasonable period of time.
In the case of one petitioner, he has during the period built a cinema theatre hall on the land now Sought in the year 1960 to be acquired and is being offered no value for the same and in due course he will be evicted from the land after he demolishes the building and removes the materials. This situation would never have arisen if the authorities had duly considered all the requirements, present and future, of the public purpose and had once for all demarcated all that area which was needed and was likely to be needed in terms of Sections 4 and 6 of the Act. Not having done that at the appropriate moment, we do not see how they can do it now in the year 1960 on the basis of the same notification issued as far back as in the year 1949. On a fair reading of the provisions of those two sections the result is inevitable that once an area in the locality is fixed to be acquired and notified under Section 6 of the Act, all the efficacy of the notification under Section 4, in pursuance of which the area was fixed, comes to an end and it becomes a dead letter. Any proposal for further acquisition in the same locality would have to be followed up by a fresh notification under Section 4(1) of the. Act. In this view we cannot out quash the notification under Section 6 of the year 1960 as being void and without jurisdiction, not being preceded by a fresh notification under Section 4 of the Act and accordingly we order.
12. The petitioners further . contended that the notification under Section 6 suffers from other infirmities in the sense that it does not specify all that is required to be stated in it under that Section. In support_ views expressed by this Court in the case of Hiralal Jain v. State of M. P., M. P. No. 155 of 1960, DA 17-2-1961 (M.P.) as followed later in the case of Bhaiyalal singh v. State of M. P., M. P. No. 277 of 1960, D/-6-7-1961 (ME), relying on the case of Iftikhar Ahmad v. State of M. P., 1960 MPLJ 1384 : (AIR 1961 Madh Pra 140) were brought to our notice. In both these cases it was held that a notification issued under Section 6 containing a mere statement as to the area of the land proposed to be acquired, or as to the settlement number of the tahsil or the district where it is situated cannot be regarded as one in compliance with the pro-Visions of See. 6 of the Act. The other side cited no authorities taking a contrary view. However, as we have held that the notification under Section 4(1) of the year 1949 itself never subsisted to enable any further acquisition being made on Its basis in the year 1960. we do not feel called upon to express any opinion one way or the other on this contention. The views expressed in the aforesaid cases may be reconsidered on an appropriate occasion. The only question that really falls for consideration, after issue of a notification under Section 6 of the Act is only with respect to the compensation payable for the land sought to be acquired. Any vagueness, if there be any, as pointed out in the aforesaid decisions, would stand resolyed the moment notice under Section 9 of the Act is issued to the landowners. There would be no scope left for causing any prejudice to them as a result of that vagueness, as in the instant case where the petitioners have appeared and taken part in the acquisition proceedings throughout till the making of a reference under Section 18 of the Act to the Civil Court, with, full knowledge of all those facts which might have been put in the notification under Section 6 of the Act.
13. The result, therefore, is that this petition succeeds. The proceedings for acquisitionof the lands pursuant to the notification of theyear 1960 in question are quashed. The petitioners shall have their costs of this petition.Counsel's fee is fixed at Rs. 100/-. The outstanding security deposit amount shall be refunded to the petitioners.