1. This is a writ-petition, under Articles 226 and 227 of the Constitution, for impugning two notifications (Annexures 'A' and 'B'), under Sections 4 and 6 of the Land Acquisition Act, 1894(hereinafter called the 'Act') published simultaneously in the Punjab Govt. Gazette dated Sept. 23, 1969. In the notification under Section 6, there was a direction to the Collector under Section 17(2)(c) of the Act that he should proceed to take possession of the land specified in the notification.
2. The aforesaid notifications are being impugned on various grounds, but only one of them has now been pressed by the learned counsel for the petitioner before me. It is urged that no public notice of the substance of the notification (Annexure A), as required by the mandatory provisions of Section 4(1) of the Act, was published by the Collector (Respondent No. 2) at convenient places in the locality where the land in question is situated. It is further urged that on account of non-compliance with this peremptory requirement of law, the entire proceedings founded on the notification were null and void. In support of his contention, learned counsel has referred to Khub Chand v. State of Rajasthan, AIR 1967 SC 1074, and Satnam Singh's case (1969) 71 Pun LR 345. This ground of challenge is incorporated in paragraph 3 (ii) of the writ-petition.
3. In the affidavit filed by Shri Kesho Ram, Director of Food and Supplies and Joint Secretary to Government, Punjab, on behalf of Respondent (No. 1), it is stated that paragraph 3(ii) concerns the Collector. In reply to this allegation of the petitioner, that the notice under Section 4(1) was not published in the locality, Shri Amrik Singh Pooni, Collector, in his affidavit stated:
'Denied for want of knowledge'. The responsibility for the publication of the substance of the notification, under Section 4, at convenient places in the locality, has been cast by law on the Collector. Consequently, this evasive denial 'for want of knowledge' could be taken an implied admission. Notwithstanding this evasive denial I gave an opportunity to the respondent to produce the necessary departmental records to show that the public notice of the notification in the locality had actually been given, as required by Section 4(1). Today, the departmental records have been produced for my perusal and my attention has been drawn to a report, dated October 11, 1969 the Patwari's Roznamcha, in the last sentence of which it is mentioned that 'loud proclamation has been got done in the village through Rup Singh'. It is absolutely wrong to say that this proclamation was of the substance of the notification under Section 4. It is proper to isolate the last sentence of the report out of its context. The report, read as a whole, shows that it relates only to the fact of delivery of possession to the acquiring department by the revenue authorities. Thus the allegation made in paragraph 3(ii) of the writ-petition, viz., that the substance of the notification was not published in the locality is correct.
4. The question to be considered is as to what is the effect of this non-publication? The dictum of the Supreme Court in Khub Chand's case, AIR 1967 SC 1074 is a complete answer to this question. Their Lordships were considering the provisions of Section 4(1) of the Rajasthan Land Acquisition Act (Act 24 of 1953) which are in pari materia with the provisions contained in Section 4(1) of the (Indian) Land Acquisition Act, 1894. It was contended before the Supreme Court that the requirement to cause a public notice of the substance of the notification, to be given at convenient places, under Section 4(1) was only directory, for a party would get under the later notification better particulars and thus he would not in any case be prejudiced. His Lordship the Chief Justice (Subba Rao, C.J.) repelled this contention with these observations:
'The provisions of a statute conferring power on the Government to compulsorily acquire lands shall be strictly construed. Section 4 in clear terms says that the Collector shall cause public notice of the substance of such notification to be given at convenient places in the said locality. The provision is mandatory in terms. Doubtless, under certain circumstances, the expression 'shall' is construed as 'may'. The term 'shall' in its ordinary significance is mandatory and the Court shall ordinarily give the interpretation to that term unless such an interpretation leads to some absurd or inconvenient consequence or be at variance with the intent of the legislature, to be collected from other parts of the Act. The construction of the said expression depends on the provisions of a particular Act, the setting in which the expression appears, the object for which the direction is given, the consequences that would flow from the infringement of the direction and such other consideration. The object underlying the said direction in Section 4 is obvious under sub-section (2) of Section 4 of Act, after such a notice was given, the officer authorised by the Government in that behalf could enter the land and interfere with the possession of the owner in the manner prescribed thereunder. The legislature thought, that it was absolutely necessary that before such officer can enter the land of another, the owner thereof should have a clear notice of the intended entry'.
5. In paragraph 7, the learned Chief Justice further observed:
'Indeed, the wording of Section 4(2) of the Act leads to the same conclusion. It says thereupon it shall be lawful for any officer generally or specially authorised by the Government in this behalf, and for his servants and workmen to enter upon and survey and take levels of any land in such locality. The expressions 'thereupon' and 'shall be lawful' indicate that unless such a public notice is given, the officer or his servants cannot enter the land. It is a necessary condition for the exercise of the power of entry. The non-compliance with the said condition makes the entry of the officer or his servants unlawful. On the express terms of sub-section (2), the officer or his servants can enter the land to be acquired, only if that condition is complied with. If it is not complied with, he or his servants cannot exercise the power of entry under Section 4(2), with the result that if the expression 'shall' is construed as 'may', the object of the sub-section itself will be defeated. The statutory intention is, therefore, clear, namely, that the giving of public notice is mandatory. If so, the notification issued under Section 4 without complying with the said mandatory direction would be void and the land acquisition proceedings taken pursuant thereto would be equally void'.
6. The learned counsel for the State contended before me that compliance with the requirement of public notice under Section 4(1) is mandatory only in those cases where the provisions of Section 5A have not been dispensed with by invoking Section 17(4). Since, in the present case--continues the argument--the urgency provisions contained in Section 17 had been invoked and the normal procedure prescribed in Section 5A has been superseded, non-compliance with the aforesaid requirement of 'public notice' would be meaningless and cause no prejudice to the persons interested in the land because they had no right to prefer objections under Section 5A. It appears to me that this contention cannot been accepted. Even in cases where the urgency provisions contained in Section 17 are invoked the statute gives no power to the Government or any other authority to dispense with any of the mandatory requirements of Section 4(1). It is also wrong to say that if the provisions of Section 5A are dispensed with by the Government in exercise of its powers under sub-section (4) of Section 17, the failure to give public notice of the substance of the notification under Section 4 would cause no prejudice. As pointed out by their Lordships in Khub Chand's case AIR 1967 SC 1074 ibid one of the objects underlying this requirement as to public notice is to clothe the officers and the servants of the department with a legal authority to enter upon and survey the land. The second object is that the person concerned should know that his land is being acquired. Such a notice is essential so that the landowner concerned may, if he so chooses, prefer objections against the acquisition under Section 5A. Even where the provisions of Section 5A are dispensed with, the person interested is not debarred from approaching the Government by a petition, though he cannot do so as of right. Further, even where the urgency provisions contained in Section 17 are invoked and action is taken under sub-section (1) of Section 17, the person interested is entitled to 15 days' notice under Section 9 before being deprived of possession. Of course, immediate possession can be taken under sub-section (2), but even in those cases 48 hours notice is necessary if the land includes any residential building.
7. For the foregoing reasons, I would hold that the impugned notifications are bad in law and must be struck down. In the result, the writ-petition is allowed. In view of the law point involved, I would leave the parties to bear their own costs.
8. Petition allowed.