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Collector of Cuttack Vs. Mayadhar Sahu - Court Judgment

LegalCrystal Citation
SubjectProperty
CourtOrissa High Court
Decided On
Case NumberFirst Appeal No. 102 of 1967
Judge
Reported inAIR1973Ori173
ActsLand Acquisition Act, 1894 - Sections 9, 9(3), 11, 18 and 25
AppellantCollector of Cuttack
RespondentMayadhar Sahu
Appellant AdvocateAdv. General
Respondent AdvocateK.C.J. Roy and ;C.R. Das, Advs.
DispositionAppeal allowed
Cases ReferredLand Acquisition Collector v. Parvati Devi
Excerpt:
- motor vehicles act, 1988 [c.a. no. 59/1988]section 173(1) proviso; [d. biswas, amitava roy & i.a.ansari, jj] appeal without statutory deposit but within limitation/or extended period of limitation maintainability - held, if the provision of a statute speaks of entertainment of appeal, it denotes that the appeal cannot be admitted to consideration unless other requirements are complied with. the provision of sub-section (1) of section 173 permits filing of an appeal against an award within 90 days with a rider in the first proviso that such appeal filed cannot be entertained unless the statutory deposit is made. the period of limitation is applicable only to the filing of the appeal and not to the deposit to be made. it, therefore, appears that an appeal filed under section 173 cannot.....s.k. ray, ag. c.j. 1. by an order dated 26-6-72 of a division bench of which the then chief justice was a member, this appeal was directed to be heardby a larger bench to examine the correctness of the decision in air 1956 orissa 114. accordingly this appeal has been heard by a full bench of three judges. 2. this appeal is by the collector of cuttack from a decision dated 23-12-66 of the subordinate judge, cuttack, in a reference under section 18 of the land acquisition act. 1894. the land, involved in this land acquisition proceeding is 0.02 decimals of gharabari in plot no. 46, appertaining to khata no. 102/11 of mouza, biribati. this land, along with other lands, was needed for improvement of cuttack-kuiang road and accordingly, the notification under section 4(1) of the land.....
Judgment:

S.K. Ray, Ag. C.J.

1. By an order dated 26-6-72 of a Division Bench of which the then Chief Justice was a member, this appeal was directed to be heardby a larger Bench to examine the correctness of the decision in AIR 1956 Orissa 114. Accordingly this appeal has been heard by a Full Bench of three Judges.

2. This appeal is by the Collector of Cuttack from a decision dated 23-12-66 of the Subordinate Judge, Cuttack, in a Reference under Section 18 of the Land Acquisition Act. 1894. The land, involved in this land acquisition proceeding is 0.02 decimals of Gharabari in plot No. 46, appertaining to Khata No. 102/11 of Mouza, Biribati. This land, along with other lands, was needed for improvement of Cuttack-Kuiang road and accordingly, the notification under Section 4(1) of the Land Acquisition Act was published on 19-4-63. Section 6 notification was also issued in dup course. Public notice under Section 9(1) of the Land Acquisition Act was issued on 18-5-63, and special notice under Section 9(3) was issued on 4-9-63. The sole-respondent, who is the person interested in the land acquired omitted to make any claim as to the amount of compensation pavable for his interest in the land acauired or to file any obiection to the measurement carried out by the Collector, under Section 8 of the Land Acquisition Act. Upon completion of the inquiry conducted under Section 11 of the Act, the Collector delivered his award on 8-10-63. for a sum of Rs. 13,690/-. This amount is the aggregate of the compensation determined by the Collector on various heads, viz the value of the land, value of the house standing thereon, amount of solatium, and the amount of damage assessed under Clauses 3, 4 and 6 of Section 23 of the Land Acquisition Act (hereinafter to be referred to as 'the Act'). Being required by the claimant-respondent a reference under Section 18 of the Act was made to the Subordinate Judge who determined the amount of compensation payable at Rs. 24-,659/-. This amount was in excess of the Collector's award by Rs. 11,040/-.

3. The Collector has appealed. Hismain contention is that as the claimant omitted to make any claim to compensation pursuant to the notice given under Section 9 of the Act, the learned Subordinate Judge could not enhance the amount of compensation awarded by the Collector, For this reliance is placed on Section 25 of the Act. In reply, it Is contended by the respondent that since no valid notice had been served under Section 9(3) of the Act. the entire proceeding commencing from Section 9 stagp till the making of the award, is without jurisdiction, and the award is accordingly void. Reliance was placed on the decision of this Court in AIR 1'956 Orissa 114.

4. Section 25 of the Act runs thus:

'(1) When the applicant has made a claim to compensation, pursuant to any notice given under Section 9, the amount awarded to him by the Court shall not exceed the amount so claimed or be less than the amount awarded by the Collector under Section 11.

(2) When the applicant has refused to make such claim or has omitted, without sufficient reason (to be allowed by the Judge) to make such claim the amount awarded by the Court shall, in no case exceed the amount awarded by the Collector.

(3) When the applicant has omitted for a sufficient reason (to be allowed by the Judge) to make such claim, the amount awarded to him by the Court shall not be less than, and may exceed, the amount awarded by the Collector.' Section 9 may now be quoted:

'9. Notice to persons interested:

(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, or by agent before the Collector at a time and place therein mentioned (such time not being earlier than fifteen days after the date of Publication of the notice) 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, and their objections (if any), to the measurements made under Section 8. The Collector may in any case, require such statement to be made in writing and signed by the party or his agent.

(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, 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 is unnecessary to quote further.

On a plain reading of the two sections it is abundantly clear that a public notice is to be given under Sub-section (1) of Section 9. That notice shall state the particulars of the land needed and shall require all persons interested in the land to appear before the Collector at the time and place indicated therein to state the amount of compensation claimed, andmake other objections. A special notice is also required to be served under Sub-section (3) of Section 9, on the occupier (if any) of the land acquired. Sub-section (2) of Section 9 further requires that the date of hearing, indicated in the public notice, shall not be earlier than 15 days after the date of its publication. The special notice shall, likewise fix a date which shall not be less than 15 days after its service and shall require the occupier to quantify his claim as to compensation, state the nature of his interest in the land, and objections, if any to the measurement. This follows from the expression 'shall also serve notice to the same effect'. If an applicant has made a claim to compensation, pursuant to any notice given under Section 9, which means pursuant to public notice under Sub-section (1) of Section 9 or to the special notice under Sub-section (3) of Section 9, the amount awarded to him by the Court in the reference under Section 18 of the Act, shall not exceed the amount so claimed, or be less than the amount awarded by the Collector under Section 11. When the applicant has refused to make a claim or has omitted without sufficient reason, to make a claim to compensation despite service of the notice given under Section 9, the Court cannot award any amount in excess of the amount awarded by the Collector. But if the Judge is satisfied about the sufficiency of the reason for the applicant omitting to make a claim, pursuant to the notice under Section 9, then he may award a sum exceeding the amount awarded by the Collector. Thus, if the applicant has refused to make a claim then in such a case, the Court acting under Section 18 of the Land Acquisition Act can in no case, award a sum higher than the amount awarded by the Collector. But if there has been omission to make a claim and the applicant satisfies the Judge that he had sufficient reason for that omission, then the Court may award a compensation higher than that awarded by the Collector. If no notice, either public or special, has at all been issued under Section 9 of the Act. Section 25 does not operate, because in that case no stage ever reached where an applicant can be said to have made a claim, or to have refused to make a claim or to have omitted to make a claim, and the Court is therefore not restricted from awarding a higher compensation than the amount awarded by the Collector under Section 11 of the Act while determining compensation in a reference under Section 18 of the Act. This would be the position if proceedings subsequent to Section 9 stage culminating in the Collector's award are not void.

5. In the present case, notices under Section 9(1) and 9(3) of the Act had, in fact been issued. This appears from the reference made by the Collector under Section 18 of the Act. Section 9(1) notice was issued on 18-5-63, and was duly published in a conspicuous place in the locality. The special notice under Section 9(3) as it appears from the land acquisition records produced before us was received by the respondent either on 4-9-63 or on 6-9-63. There is controversy as to whether the date put by the respondent on the back of the notice is 4-9-63 or 6-9-63. It appears, to the naked eye that there is some overwriting of the first digit indicating the date of the month. That notice has specified the date of hearing on 20-9-63. If the date of receipt of the notice is 4-9-63, then the notice has been served more than 15 days Prior to the date of hearing fixed in the notice. It was, therefore, incumbent upon the Subordinate Judge to determine the actual date of service of notice and if he came to the conclusion that it was 4-9-63, then it has been served 15 days prior to the date of hearing and is a valid notice in all respects. In such a case, he should have considered the question whether the applicant refused to make a claim or omitted to make such a claim to compensation pursuant to such notice and then if he was of the opinion that it was not a case of refusal but a mere omission then he should have proceeded further to consider the sufficiency of the reason for such omission before he Passed the award in excess of the Collector's award. The Subordinate Judge does not appear to have been cognizant of this statutory obligation under Section 25 of the Act, in certain contingencies and his total lack of jurisdiction to determine the compensation at an amount, higher than that awarded by the Collector in certain other contingencies envisaged in Section 25 of the Act.

6. The moot point, which arises In the context of the aforesaid facts, is whether the requirement of Section 9 of the Act is so obligatory in character that the award, passed by the Collector without issuing valid general and special notices thereunder, is void, and the proceedings taken to make such award, are invalid. Incidentally a subsidiary issue arises, namely, whether defective notices issued under Section 9 of the Act, defec-tive because they do not provide 15 clear days between the date of service and the date of hearing indicated therein, arc invalid and as such it is to be regarded as if no notices have been issued at all.

In deciding whether Section 9 of the Act is mandatory or not, regard must be had to the context, subject matter and theobject of the Land Acquisition Act. Lord Cambell has said in the case of Liverpool Borough Bank v. Turner, (1861) 30 LJ Ch 379 (PP. 380-381):--

'No universal rule can be laid down as to whether mandatory enactments shall be considered directory only or obligatory with an implied nullification for disobedienee. It is the duty of Courts of justice to try to get at the real intention of the legislature by carefully attending to the whole scope of the statute to be considered'.

There is a passage in the text book 'Statutory Construction' by Craw-ford at page 516 which runs as follows:--

'The question as to whether a statute is mandatory or directory depends upon the intent of the legislature and not upon the language in which the intent is clothed. The meaning and intention of the legislature must govern, and these are to be ascertained not only from the phraseology of the provision, but also by considering its nature, its design and the consequences which would follow from construing it the one way or the other.' This passage has received approval from the Supreme Court in many cases. In ascertaining the real intention of the legislature the Court has to consider amongst other things, the nature and design of the statute and the consequences which would follow from construing it the one wav or the other the impact of other provisions whereby the necessity of complying with the provisions in question is avoided, the circumstance, namely, that the statute provides for a contingency of the non-compliance with the provisions the fact that the non-compliance with the Provisions is or is not visited with by some penalty, the serious or trivial consequences that flow therefrom, and, above all whether the object of the legislation will be defeated or furthered.' (Vide State of U.P. v. Baburam AIR 1961 SC 751 at p. 765).

One line of approach in this connection is that if by holding a statutory provision mandatory, serious general inconvenience will be created to innocent persons without very much furthering the object of the enactment, the said statutory provision will be considered as directory.

In this legal perspective. I will now proceed to consider the scope, nature, design of the Land Acquisition Act and the consequences which would follow from construing Section 9 of the Act as mandatory or as directory.

7. The Land Acquisition Act is a piece of legislation for compulsory acquisition of all rights in land if required for public purposes or for a company. Section 4 of the Act provides for publication of preliminary notification whereupon it becomes lawful for any officer of the Government and for his servants and workmen to enter upon the land, proposed to be acquired, to carry out survey to take levels, dig or bore into the subsoil and to do all other acts, necessary to ascertain whether the land is adapted for such purposes. In order to effectuate these purposes, the Officer and his workmen are entitled to cut down and clear away any standing crop, fence or jungle on the land. Section 5 casts an obligation upon the Officer, entitled to enter upon the land to pay or tender payment for all necessary damage that is to be done for the purposes of effecting the purposes under Section 4. Notification under Section 4 is a notice to the owner and to all persons having interest in the land that it is needed for public purposes or for a company. If any of those interest-holders have any objection to such acquisition for the aforesaid purposes, he is given an opportunity under Section 5A of the Act to agitate against such proposed acquisition. After such objection is disposed of, notification under Section 6 is issued declaring finally that the land is required for public purposes or for a company. This notification will disclose the location of the land the purpose for which it is needed, its approximate area and the place where a plan of the land is to be inspected. Such a notification under Section 6 becomes conclusive evidence that the land is needed for public purposes or for a Company. It gives jurisdiction to the authorities under the Act to take further steps for finalisation of the acquisition of the land in the manner, laid down thereafter. Sub-section (3) of Section 6 of the Act says that-

'After making such declaration, the appropriate Government may acquire the land in manner hereinafter appearing'.

This indicates that the provisions of Sections 7 to 10 contain the procedure, regarding the manner of acquisition. The Government directs the Collector under Section 7 to take order for acquisition of the land. That gives authoritative jurisdiction to the Collector to act and do all such things as are enjoined upon him under the subsequent provisions of the Act in order that he may pass ultimately an award and to take possession of the acquired lands. The first act of the Collector after being authorised under Section 7, is to mark out the land measure it and if no plan has been made thereof, to prepare one. After that is done, he will proceed to make an award and while doing so. he is enjoined to issue notices under Section 9. Section 9 of the Act contemplates two kinds of notices one a general noticeunder Sub-section (1) the form and contents of which are set out under Sub-section (2). Sub-section (3) thereof envisages a special notice to all occupiers of the land and to all persons, known or believed to be interested therein. Section 10 of the Act empowers the Collector to require from and enforce it upon the Persons served with special notice to disclose the name of every other person possessing any interest in the land and other informations enumerated therein. Then after making an enquiry as to the objections, if any, which any person advances pursuant to a notice issued under Section 9 of the Act either with regard to the measurement of the land or to the value of the land, he may proceed to make an award, setting forth the true area of the land, the compensation, which in his opinion should be allowed for the land and the apportionment of the said compensation among all persons known or believed to be interested in the land of whom, or of whose claims, he has information whether or not they have respectively appeared before him. Section 16 of the Act then provides that when the Collector has made an award under Section 11, he may take possession of the land which shall thereupon vest absolutely in the Government free from all encumbrances. If any person is dissatisfied with any part of the award, relating to the measurement, the quantum of compensation and apportionment thereof, he may require the Collector to make a reference to the Court within a time prescribed therein for judicial determination of those matters under Section 18 of the Act. Section 25 of the Act provides that when the claimant has made a claim to compensation, pursuant to any notice, given under Section 9, the amount awarded to him by the Court, shall not exceed the amount so claimed or be less than the amount, awarded by the Collector under Section 11 of the Act. If the claimant has refused to make such claim or has omitted without sufficient reason to make such claim the amount, awarded by the Court, shall in no case exceed the amount awarded by the Collector. If the claimant satisfies the Judge as to the sufficiency of his reason for omitting to make a claim before the Collector the Court is free to award an amount of compensation in excess of the amount, awarded by the Collector in course of his judicial determination in the reference, made to him under Section 18 of the Act.

8. It is clear that Sections 4, 6 and 7 prescribe the mandatory conditions which are pre-requisite to the conferment of jurisdiction on the Collector to proceed further in the matter of acquisition of theland, for making an award and takingpossession, upon which the land vests absolutely in the Government. Before Section 9 stage is reached the owner and all persons, interested in the land, have become aware of the intention of the Government to acquire land either for any public purpose or for a company and it has been decided conclusively, after hearing objections from them, that such land is needed for such purposes. The Collector vested with the jurisdiction to take order for acquisition of the land under Section 7 of the Act, before he makes an award under Section 11 has to follow the procedure, laid down under Sections 9 and 10 of the Act. The purpose of issuing notices under Section 9 is to hear the objection, if any as to the measurement marking out and plan of the land under acquisition and to consider the amount of compensation claimed by persons having interest in land. The only consequence of non-compliance with Section 9 of the Act appears to be that the findings of the Collector with regard to all relevant matters like measurement, amount of compensation, and the person or persons entitled to the same or to share the same are not binding on persons interested in the land acquired, and the Court, acting under Section 18 of the Act is free from the restrictions imposed under Section 25 of the Act He is free to assess the compensation, irrespective of the amount fixed in the award, if he is satisfied that no notice under Section 9(3) of the Act has been served. Non-service of notice under Section 9(3) would presumably constitute a sufficient reason for the claimant for having omitted to make any claim before the Collector. Thus non-service of notice under Section 9(3) does not inflict any irreparable injury on the claimant or persons, interested in the land. The scheme of the Act clearly indicates that the proceeding before the Collector prior to making an award, is not intended to be a long drawn out judicial proceeding. The object of the Act being to serve public purposes or the purposes of a company which is equally a public purpose, the duty cast on the Collector is a public duty and to hold acts done by Collector null and void because they have been done by omitting some procedural statutory requirements or by improperly complying with the same would work serious general inconvenience while to hold otherwise would promote the object of the legislature without permanently impairing private interests of a few. Considering these aspects, it appears to me that the provisions of Section 9(3) as to notices are only directory and non-compliance or imperfect compliance with it does not make subsequentproceedings invalid or the award void. The Privy Council has said in the case of Montreal Street Rly. v. Normandin AIR 1917 PC 142 at page 144:

'When the provisions of a statute relate to the performance of a public duty and the case is such that to hold null and void acts in neglect of this duty would work serious general inconvenience, or injustice to persons who have no control over those who are entrusted with the duty, and at the same time would not promote the main object of the legislature, it has been the practice to hold such provisions to be directory only.'

These observations fully apply to the present case.

9. Dealing with the inquiry launched by the Collector as to the value of the land needed for public purpose resulting in an award (Sections 8 to 16 of the Act), the Privy Council has declared that those proceedings are administrative and not judicial. I quote passage in this connection from the judgment of the Privy Council in the case of Ezra v. Secretary of State for India, (1905) 32 Ind App. 93 (PC).

'It is not suggested that there was in the proceedings anything corrupt or fraudulent and the objection is based and depends upon the theory that the inquiry by the Collector was a judicial proceeding, and that the rules of judicial proceedings apply. The argument of the appellant starts from the word 'award' (which is used to describe the Conclusion of the Collector), and has nothing else to support it. When the sections relating to this matter are read together it will be found that the proceedings resulting in this 'award' are administrative and not judicial: that the 'award' in which the inquiry results is merely a decision (binding only on the Collector) as to what sum shall be tendered to the owner of the lands: and that, if a judicial ascertainment of value is desired by the owner, he can obtain it by requiring the matter to be referred by the Collector to the Court. The sections directly relevant (besides the 9th already set out), are the 11th, 12th, 13th 14th, 15th and 18th.'

This indicates that the irregularity or insufficiency of notice under Section 9(3) of the Act in that the notice does not give the owner the prescribed time or fixes a shorter time in contravention of the section, does not make the Collector's proceeding for ascertainment of the compensation payable and the award ultimately passed thereon void acts. Whether the passing of the award in contravention of Section 9(3) of the Act is a nullity or a mere irregularity the test to be applied as said by the Supreme Court is to see whetherthe party can waive the objection as to the defective character of the notice. I will quote the passage from the decision of the Supreme Court in the case of Dhirendra Nath Gorai v. Sudhir Chandra Ghosh, AIR 1964 SC 1300:--

'..... the safest rule to determinewhat is an irregularity and what is a nullity is to see whether the party can waive the objection; If he can waive it, it amounts to an irregularity, if he cannot, it is a nullity. A waiver is an Intentional relinquishment of a known right but obviously an objection to jurisdiction cannot be waived for consent cannot give a Court jurisdiction where there is none, Where such jurisdiction Is not wanting, a directory provision can be waived. But a mandatory provision can only be waived if it is not conceived in the public interest but in the interest of the party that waives it.'

Having regard to the scheme of the Act it is clear that Section 9(3) thereof is not conceived in the public interest but in the interest of the owner and occupier of the land under acquisition. The persons, therefore, who are required to be noticed under Section 9(3) of the Act can therefore waive it. That is so even though Section 9(3) of the Act is assumed to be a mandatory provision of law.

10. There are a number of judicial decisions to be noticed, herein below, which tend to take the view that Section 9(3) of the Act is not obligatory with an implied nullification for its disobdience.

In the case of Sukdev Saran Dev v. Nripendra Narayan Chandra (1942) 76 Cal LJ 430 notice under Section 9(3) of the Act was not issued and served on the owner of the land acquired. Dealing with the effect of such failure it was said:

'Considering the scheme of the Act, that the main question that can be agitated by a person to whom notice might be given was merely the amount of compensation, and that any such person still has reserved to him under Section 31, a right to claim from the person actually receiving compensation any amount to which he may consider himself entitled; considering further the difficulties likely to arise if every failure to comply with the details of the proceedings of acquisition is to render them null and void we can see no reason to think that the failure to give this notice must be given such importance that the provisions must be held to be of a highly mandatory character such as that the failure to follow it will render the whole, proceedings null and void and Inoperative.'

In the case of Gangaram Marwari v. Secretary of State, (1903) ILR 30 Cal 576the Calcutta High Court, while interpreting the provisions of the Land Acquisition Act (X of 1870), held that the land acquired under the said Act vests absolutely in the Government free from all encumbrances after a bona fide award or reference by the Collector has been made and possession taken, even when no special notice as required under Section 9 of the Act has been served on the person known or believed to be interested therein.

The Bombay High Court in the case of Laxmanrao Kristrao v. Provincial Government of Bombay, AIR 1950 Bombay 334, laid down that a wilful, fraudulent or perverse omission to serve notice under Section 9(3) of the Act, makes the actions of the Collector colourable and mala fide, and would entitle the owner of the land or any person, having interest in it to challenge the Collector's award. In that case public notice under Section 9(1) of the Act was published, but no notice under Section 9(3) had been Issued.

Dealing with the scheme of the Act their Lordships said:--

'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 of 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.'

In the case of Shivdev Singh v. The State of Bihar, AIR 1'963 Pat 201, it was held that failure to serve notice under Section 9(3) of the Act did not make the award of the Collector or taking of possession of the property by the Collector illegal or void: in other words their Lordships said that even though no notice was served under Section 9(3) of the Act, the proceeding for acquisition of land terminating in the award of the Collector under Section 11 cannot be held to be illegal or ultra vires.

To the similar effect is the decision of the Andhra Pradesh High Court in the case of Yusuf Begum v. The State of Andhra Pradesh, AIR 1969 Andhra Pradesh 10. There, it was held that an award passed by the Collector cannot be quashed only because an interested person was not served with notice under Section 9(3) of the Act and that he came to know about the same after passing of the award. In such a case, though such a person was not a party to the land acquisition proceedings, he is entitled to seek a reference to the Civil Court on an applicationmade by him to the Collector under Section 18 of the Act.

Same is the decision of the Mysore High Court in the case of Hunuikeri Bros v. Asst. Commr. Dharwar Dn. AIR 1962 Mys 169. Their Lordships held:--

'The object in enacting Sub-section (3) of Section 9 of the Land Acquisition Act is to afford persons occupying the land or interested in it to make a claim for compensation so that the Collector might decide the compensation payable to them and order its payment. If in the making of that claim or in its establishment, the omission to serve a notice under Sub-section (3) of Section 9 has brought about a hindrance, it is clear that the person who was so prevented from making a claim or from establishing it has a right to challenge the award by the adoption of suitable steps for that purpose. It is, however, clear that there is no inflexible rule that an omission to serve a notice under Section 9(3) always, and in all circumstances, vitiates an award. Sub-section (3) of Section 9 enjoins the service of notice only on those who are known or believed to have an interest in the property which is proposed to be acquired, and so long as it is not established that the petitioner was known or believed to have any interest in the acquired property, it cannot be said that the Collector was under a statutory duty to serve a notice on him. At any rate, the omission to do so cannot be made the ground for an attack that the award to any extent is a void award.'

In the case of Tara Prasad Chaliaha v. Secy. of State, AIR 1930 Cal 471 it was held that where the provisions of Section 9 of the Act have not been strictly followed as regards service of notice it would be absolutely wrong to prevent the claimant from asking for proper compensation even in excess of the amount under the Collector's award in a reference under Section 18 of the Act. In such a case, it is not possible to apply the stringent provisions of Section 25 of the Act in preventing the claimant from claiming a compensation higher than that awarded by the Collector.

In the case of Land Acquisition Collector v. Parvati Devi, AIR 1964 Him. Pra. 32 though it was held that Section 9 of the Act is mandatory and must be strictly complied with yet in course of the judgment their Lordships held that irregular compliance with the Provisions of this section does not attract the penal provisions of Section 25 of the Act.

They nowhere say that invalidity of the notice under Section 9, due to fixing a shorter period than that provided for in the section, or due to defect in compliancewith some other requirements of the section affects the validity of the land acquisition proceedings from that stage and makes the Collector's award a void one.

11. Thus, having regard to the scheme, nature, and design of the Act, and the consequences which would follow in construing them in one way or the other, and having regard to the fact that non-compliance with Section 9(3) does not visit the claimant or any person interested in the land with any penalty as is envisaged under Section 25 of the Act or that it Leaves such person remedyless having regard to his rights because he can claim a judicial determination of his rights under Section 18 of the Act and having regard to the object of the Act, viz., to further the public interest which will suffer serious inconveniences if Section 9(3) is construed in a manner as to imply nullification for its disobedience. I am of the opinion that non-compliance of the requirements of Section 9(3) of the Act does not make the proceedings of the Collector invalid, nor does it render the award, ultimately passed under Section 11 a void one. This view is in accord with the judicial decisions considered above. In my opinion therefore the decision of this Court in ILR (1956) Cut 443 = (AIR 1956 Orissa 114) in - so far as it lays down that Section 9(3) of the Act is mandatory and its non-compliance results in invalidating all the subsequent proceedings of the Collector and in making the award passed by him legitimately void has not been correctly decided.

12. In the present case, as already shown the Subordinate Judge has not determined the crucial question arising, viz., whether the notice issued under Section 9(3) of the Act was a valid notice by providing 15 clear days for appearing before the Collector for making his claim, or to Put forth his objection and if no such valid notice had been issued whether that amounted to sufficient reason in Ms opinion, which explained the claimant's omission to make his claim before the Collector so as to justify awarding a sum in excess of the amount awarded by the Collector. The Subordinate Judge has a statutory duty to perform under Section 25 of the Act. This therefore, is a proper case which is to be remitted back to him to decide the reference afresh in accordance with law and in accordance with the directions given herein below:

(1) He shall give opportunity to the State to give evidence as to the validity and regularity of the notice issued under Section 9 of the Act, and to give opportunity to the claimant for rebutting the evidence on that point.

(2) He shall decide, if he reaches a conclusion that notices under Section 9 ofthe Act have either not been issued at all or have been irregularly issued whether that is a sufficient reason to be allowed by him so that he may get the jurisdiction to award an amount in excess of the amount awarded by the Collector under Section 11 of the Act.

(3) After determining the aforesaid two points, he shall proceed to determine the other points of reference, on the basis of evidence already on record, together with the evidence that may be adduced by reason of the aforesaid directions.

13. In the result, the appeal is allowed, the decision of the Subordinate Judge is set aside, and the case is remitted back to him for a fresh disposal In accordance with the directions given above.

Costs will abide the result.

Patra, J.

14. I agree.

Acharya, J.

15. I agree.


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