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State of Punjab Vs. Gurdial Singh and anr. - Court Judgment

LegalCrystal Citation
CourtPunjab and Haryana High Court
Decided On
Case NumberLetter Patent Appeal No. 2 of 1979
Reported inAIR1984P& H1
ActsLand Acquisition Act, 1870 - Sections 4(1), 5-A(1), 6, 9, 9(1), 9(2), 9(3), 10, 10(1), 12, 18, 31 and 40
AppellantState of Punjab
RespondentGurdial Singh and anr.
Cases ReferredSher Singh v. Union of India
- sections 100-a [as inserted by act 22 of 2002], 110 & 104 & letters patent, 1865, clause 10: [dr. b.s. chauhan, cj, l. mohapatra & a.s. naidu, jj] letters patent appeal order of single judge of high court passed while deciding matters filed under order 43, rule1 of c.p.c., - held, after introduction of section 110a in the c.p.c., by 2002 amendment act, no letters patent appeal is maintainable against judgment/order/decree passed by a single judge of a high court. a right of appeal, even though a vested one, can be taken away by law. it is pertinent to note that section 100-a introduced by 2002 amendment of the code starts with a non obstante clause. the purpose of such clause is to give the enacting part of an overriding effect in the case of a conflict with laws mentioned with the.....s.s. sandhawalia, c.j.1. the significant question visualised in the order of reference to this full bench may be more precisely formulated in the following terms:--'whether a bona fide omission to serve a notice envisaged by s. 9(3) of the land acquisition act on anyone of the numerous persons interested in' claiming compensation would vitiate the award of the collector rendered under s. 12,and the proceedings subsequent thereto?'2. at the very outset i would wish to record that for the detailed reasons stated hereinafter, the answer to the aforesaid question has to be rendered in the negative, because of the massive weight of precedent, the clear and the specific provisions of the land acquisition act, end upon larger principle.3. it is plain that the issue aforesaid is purely legal and.....

S.S. Sandhawalia, C.J.

1. The significant question visualised in the order of reference to this Full Bench may be more precisely formulated in the following terms:--

'Whether a bona fide omission to serve a notice envisaged by S. 9(3) of the Land Acquisition Act on anyone of the numerous persons interested in' claiming compensation would vitiate the award of the Collector rendered under S. 12,and the proceedings subsequent thereto?'

2. At the very outset I would wish to record that for the detailed reasons stated hereinafter, the answer to the aforesaid question has to be rendered in the negative, because of the massive weight of precedent, the clear and the specific provisions of the Land Acquisition Act, end upon larger principle.

3. It is plain that the issue aforesaid is purely legal and the peculiar circumstances of this case would pale into relative insignificance. Since I propose first to focus attention primarily on the legal issue, it becomes unnecessary to advert to the facts in any great detail, Suffice it to mention that in the judgment under appeal, the learned single Judge had found that the special notice under Section 9(3) of the Act (hereinafter called the Act) had been served upon a cosharer and not personally upon the respondent landowner Lt. Col. Gurdial Singh and on that ground he allowed an opportunity to him to prefer a reference under Section 18 of the Act by specifically condoning the delay and allowing a further period of three months for doing so. This Letters Patent Appeal moved by the State of Punjab originally. came up before my learned brother D. S. Tewatia, J. and myself. At that, stage the judgment of the learned single Judge (reported in 1979 Pun LJ 18) was inter alia sought to be sustained on behalf of the respondent on the ground that the failure to specifically serve him with a notice under Section 9(3) would entail the vitiation of the whole of the Award and the proceedings following thereafter. Consequently, it was claimed that a fresh Award would have to be passed inevitably giving the respondent the right to file a reference under Section 18 thereafter. However, the learned Addl. Advocate General appearing for the appellant-State took up the categoric stand that Section 9(3) of the Act was directory in nature and any bona fide omission to serve any one or a host of persons interested in claiming compensation individually or personally was a mere irregularity which would not vitiate either the Award or the proceedings prior or subsequent thereto. In view of some conflict of authority and the significance of the question, the matter was referred to the Full Bench.

4. At the very threshold it calls for pointed notice that there already exists a consistent stream of unbroken precedent flowing serenely over eight decades or more n most of the High Courts which obviously must have the pride of place apart from equally other significant factors supporting that view. Herein, one might well begin with the following authoritative enunciation by the privy Council in Ezra v. Secretary of State, (1905) ILR 32 Cal 605 as regards the true character of the proceedings resulting in the Award by the Collector under Section 12 of the Act:--

'......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 enquiry. 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......'

It against the aforesaid background that the long line of precedent in the various High Courts may be noticed chronologically beginning from the celebrated Division Bench judgment in Ganga Ram Marwari v. Secretary of State for India, (1903) ILR 30 Cat 576, wherein the very question before us, was specifically posed by the Bench itself in the opening part of the judgment and answered in the following terms:--

'....... The Land Acquisition Act (X,of.1870) evidently contemplates the valid acquisition of land and its absolute vesting in Government after a bona fide award or reference by the Collector has been made and possession has been taken, notwithstanding that persons interested may not have had notice. This is clear, not only from Section 40 of. the Act, which Provides the proper remedy far persons interested who have not had proper notice, and also from Section 9 itself, which is relied upon by the other side; far the very provision that persons known or believed to be interested are to have notice shows that persons interested who are not known or believed to be interested may not have notice, and yet the proceedings may go on validly.'

The aforesaid view was followed in the Madras High Court in Kasturi Pillai v. Municipal Council, Erode; AIR 1920 Mad 417,,and thereafter has been consistently adhered in the said jurisdiction. Equally the ratio in Rahimbux Haji Karimbux v. Secretary of State; AIR 1938 Sind 6, is in consonance with the aforesaid precedent holding that the Collector's failure to serve notice on the occupier or the owner under Section 9(3) of the Act would not make the award and the subsequent proceedings void. A fuller elaboration of the rationale underlying the rule has been made in the following terms by the Division Bench in Mahanta Sri Sukdev Saran Dev v. Raja Nripendra N,arayan Chandradhvarjee; (1942) 76 Cal LJ 430:--.

'Considering the scheme of the Act, that the main question that can be egitatei3 by a person to whom notice might be given was merely the amount of compensation, and that any such person still has. reserved 2o 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. 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: We are, therefore, unable to agree With the finding of the lower appellate Court on this point.'

The Division Bench in Jagarmath Prasad Shah v. Municipal Board, Benders, AIR 1948 All 446 was even more categoric in this context with the following observations

'There is no provision which requires that the Collector has to give notice to the real owner and that it a mistake is made in serving notice on the real owner the whole proceedings are vitiated.'

and then............

*****We, therefore, see no force in the contention of learned counsel that because the Collector did not serve notice on Hari Das Rastogi and Narshing Das the whole Proceedings were vitiated.'

In. Laxmanrao Kristrao v. provincial Government of Bombay; AIR 1950 Bom 334, the Division Bench drew some distinction betwixt an occupier and the rest of the c ass of persons interested and observed in unequivocal terms that the mere omission or failure to serve the notice under Section 9(3) of the Act on the persons interested is not sufficient in itself to entitle them even to challenge the award. Within this jurisdiction the Division Bench in Jhandu Lal Budhram v, State of Punjab, AIR 1959 Punj 535 seems to have even gone further in holding that a failure to issue a public notice under Section 9(1) was nothing more than an omission of a preliminary step acid it could not be said that by the non-issuance of the notice the proceedings Would be invalidated. In Shivdev Singh v. State of Bihar, AIR 1963 Pat 201, Untwalia, J., speaking, for himself and Ramaswami, C. J. has Said in no uncertain terms as under:--

'***** But it is clear to me that the proceeding or the award in relation to the acquisition of the premises in question cannot be he1d to be illegal or void or without jurisdiction for non-service of a notice on the petitioner under Section 9(3) of the Land Acquisition Act.' The aforesaid view was unreservedly followed by. Bass Reddy, J.,. in IOUs Began v. State of Andhra Pradesh, AIR 1969 Andh Pra 10, holding it as well settled that the absence of notice under Section 9(3) would not render the award a nullity. The same view has been expressed by the learned single Judge in Prabhu Dayal Bhargava v. Union of-India, (1975) 77 Pun LR (D)_ 176 and State of Kerala v. Gopinathan Nair, 1975 Ker LT 497. Lastly A. N. Sen, J., in P. K. Shaikh v. State of West Bengal, AIR 1976 Ca1 149, concluded as under: '***** Non-service of the notice on the petitioner even if the petitioner was entitled to any notice under Section 9(3) will only affect the claim of the petitioner with regard to compensation end in the facts and circumstances of the case non-service of the notice on the petitioner cannot and does not vitiate the acquisition proceedings and the award.'

5. It would be manifest' from the above that the High Courts of Allahabad,. Andhra Pradesh Bombay, Calcutta, Delhi, Kerala, Madras, Patna and Punjab;and the Judicial Commissioner's Court of Sind are unanimous' in holding that. (in the absence of a wilful, perverse, or a fraudulent failure on the part of the Collector) a bona fide omission to serve the special notice envisaged under Section 9(3) on the persons interested is an irregularity which does not necessarily lead to the invalidation of the whole or part of the Award or wholly or partially vitiate the proceedings subsequent thereto.

6. For clarity of precedent and in fairness to the learned counsel for the respondent, one must now advert to the solitary discordant note first struck by the learned single Judge in Velagapudi Kanaka Durga v. District Collector, AIR 1971 Andh Pra 310. A close perusal of the judgment would indicate that the primary question under consideration was whether there should be 15 days' clear notice for holding an enquiry under section 11 after the issuance of a notice or notices under Sections 9(3) and 10(1) of the Act. This is self-evident from the formulation of the question in the very opening part of the judgment itself. T However, whilst focussing himself primarily on the aforesaid issue, ancillary observation were nevertheless made that Section 9(3) is mandatory and it was concluded that in view of the fact that 15 days' clear time had not been given by the notices all Proceedings subsequent to the date of the notice including the award were vitiated and were consequently quashed. It is evident that the matter was not fully canvassed before the learned single Judge and neither principle nor the long line of precedent quoted above was even remotely brought to his notice and the issue 'seems to have been decided as if one of first impression though it stood covered by the earlier judgments within the Court of Andhra Pradesh itself. Reliance was placed on the succeeding section but it seems to have been altogether missed that the same is itself not a mandatory provision but is indeed merely an enabling one to which the Collector may or may not resort for collecting information about the persons interested in compensation. Great store was set by the fact that occupier was obliged to answer the queries made by the Collector truthfully. With the greatest respect I am unable to see how Section 10 or these requirements would m any way add or substract from the mandatoriness or otherwise of Section 9(3) and the logical consequences from a bona fide omission with. regard to its compliance. The force of the judgment is weakened, if not nullified,. by. its. failure to notice the clear and categoric earlier view of the same High Court in Yousuf Begem's case (AIR 1969 Andh Pra 10) (supra). As already noticed the primary focus of attention was altogether on a different point and only to buttress that view observations were made in para 5 of the report which would well be in the nature of. obiter dicta. It bears repetition that the pointed. question whether a failure to serve a special notice alone (even though the requirements of a public notice under Section 9(1) stood fully complied with) was not even remotely put in issue nor directly adjudicated upon. With the greatest respect I am inclined to the view that Velagapudi Kanaka Durga's case (supra) is contrary to the stream of precedent in a11 the other High Courts and equally not tenable on principle and I would, therefore, wish to record a respectful dissent therefrom on this specific point.

7. In Mani Ram v. State of Punjab, AIR 1975 Pun & Har 135, my learned brother Tewatio, J., sitting singly approvingly quoted extensively from Velagapudi Kanaka Durga's case (supra) and took a similar view whilst primarily agreeing with the same. Support, however, was sought from. the Division Bench judgment of this Court in State of Punjab v. Karnail Singh ILR (1965) 2. Punj 525 However, as was itself noticed this authority was not directly on the point under Section 9(3) of the Act and the general observations made therein took in its sweep the public notice provided under Section 9(1) of the Act. The distinction between the public notice provided under Section 9(1) and the special individual notice under Section 9(3) is too patent to call for elaboration and consequently the said judgment is in no way any warrant for the proposition that an inadvertent failure of service under Section 9(3) of the Act would render the award and the subsequent step relating to the acquisition invalid. The observations of the Division Bench in Jhandu Lal Budh Ram's case (AIR 1959 Punj 535) (supra) were also ignored as not being of much help. The large mass of precedent, to which I have referred earlier, was apparently not brought to the notice of the Bench apart from Shivdev Singh's case (AIR 1963 Pat 201) (supra) which was dissented from. Primarily far the reasons recorded earlier in the context of Velagapudi Kaneka Durga's case (AIR 1871 Andh Pra 310) (supra),as also for the larger considerations and first principles delineated hereinafter, I am with great respect inclined to the view that Mani Ram's case (supra) is also not correctly decided and has to be necessarily overruled.

8. However, it is not only the massive weight of precedent which persuades me to the view I am inclined to take but equally if not more so the larger scheme of the Act itself This is itself indicative of the fact that individual or personal notices to persons interested at the time of both the acquisition of land or the awarding of compensation therefor is not the absolute requirement of law. This apparently rests on the larger principle that in these proceedings there may be a host of persons so interested who cannot be individually or personally served as if they were parties to a lis or litigation in a Court of law. As already quoted above, the Privy Council in Ezra's case ((1905) ILR 32 Cat 605) (supra) correctly diagnosed the true nature of the proceedings conducted by arid before the Collector. Herein the statute resorts to the broader method of publication either by way of a notification in the official gazette or by way of a public notice in the locality. It is significant to recall that even under Section 4 which is the foundational core of the acquisition proceedings which would ultimately lead to the divesting of the title of the owner or persons interested therein, the statute does not provide any individual or personal service on even the landowner or persons interested therein, It rests itself content with a publication in the official gazette and a simultaneous issuance of public notice of the substance of such notification at convenient places in the locality. It is settled law that the validity of the action under Section 4 is in no way affected by the individual non-service of either the owner or any other persons, however, deeply interested in the acquisition proceedings which would ultimately and in divestiture of al1 the rights or title therein and vesting the same free from all encumbrances in the Government. Again the declaration that the land is required for a public purpose under Section 6 is not required to be individually served on owners or interested persons. Herein a publication in the official gazette is deemed sufficient notice and even a public notice in the locality is dispensed with. Such notification is conclusive evidence that the land is needed for the public purpose and thereafter it can be acquired in the manner prescribed.

9. What now calls for particular attention is the fact that sub-section (1) of Section 9 in turn provides for a public notice to be given at convenient places on or near the said land inviting the persons interested to appear before the Collector and make their claims with regard to their respective interests. This is analogous in the context of compensation to what is provided in the relevant part of Sections 4(1) and 5A(1) with regard to acquisition, sub-section (2) of Section 9 then provides in detail for the particulars and the contents of the said notice. It would appear that. both in sequence and in significance this public notice at convenient places is the primary and the integral form of giving information to the persons interested arid inviting them to make their claim for compensation. That this is. so, would be evident from the fact that the specia1 notice under Section 9(3) is only a reflection or a copy of the public notice under Section 9(1). Consequently, the special notices are merely an additional or ancillary mode of service to the primary provision of public notice. the contents whereof are Provided for and prescribed in sub-sections (1) and (2). To put it in other words, Section 9(3) is a supplementary provision to the basic one of public notice under the preceding two sub-sections. This view receives further support from the deliberate use of the word 'also' employed in sub-section (3). As was pithily noticed in Gaaga Ram Marwari's case (1903 ILR 30 Cal 576) (supra) Section 9(3) provides for service on persons known or believed to be interested and obviously there is no, and indeed cannot be, any mandate to serve persons who are neither known nor believed to be so by the Collector, though in actual fact they may be directly and primarily interested in the compensation. Consequently, in such a situation, despite the absence of service of a special notice on such persons, including even the actual owners, the proceedings would not be violative of Section 9(3) and therefore, plainly valid. However, this is not to be mis-understood as implying that the provisions of Section 9(3) are to be honoured in breach. The command of the legislature and must be observed and any wilful or fraudulent omission to evade the same would obviously have serious consequences. However, it seems to be a far cry from this to go on to hold that merely because one or the other of innumerable persons interested in the compensation have not been individually and personally served, then the whole or part of the Award would be rendered void as also the subsequent proceedings thereto would be vitiated. It is in order to underscore this aspect that section 12 of the Act employs peremptory language. It declares that once the award is filed, the same shall be final and conclusive evidence of the true area and the value of the land as also of the apportionment of the compensation amongst the persons interested. Significantly this provision in terms says that whether the persons interested had respectively appeared before the Collector not this finality will in no way be affected thereby.

10. Herein the matter also deserves to viewed from another angle. As has been discussed above, section 9 provides both for a public notice at convenient aces as also a special notice to occupiers and persons interested. It is a well-known cannot of construction that any detailed provision of the law has not to be construed as a mere surplusage. If the supplementary provisions of section 9(3) were to be raised to the pedestal of absolute mandatoriness to the extent that any and every omission in service would under the award as also the proceedings subsequent thereto as invalid then the provisions of Section 9 (1) and (2) would rendered virtually redundant and otiose. What indeed would be the use of a detailed public notice specifically provided by law, if despite full and meticulous compliance therewith the proceeding would nevertheless be invalid unless specifically individual and personal notices are served on any and every person interested. Such a construction of S. 9 would, to my mind, be a contradiction in terms. In larger perspective has to be recalled that public notice is primarily resorted to where difficulty of individual and personal service renders e latter form either impossible or in any case unpracticable. If despite public notice, the same meticulousness of personal and individual service is to be maintained then obviously public notice is virtually an exercise in futility and redundant.

11. Now apart from the provisions of the Act it appears to me on the larger principle, that if a bona fide failure to individually and personally serve anyone of the persons envisaged under Section 9(3) is held to vitiate the award and the proceedings subsequent to the notice it would be fraught with great public mischief. It is plain that the terminology of 'persons interested' and further all those known or believed to be so would cast the net at its widest. Section 3(b) defines' persons interested' as under:--

'3. In this Act, unless there is something repugnant in the subject or context:--

(a) * * * (b) the expression 'person interested' includes all persons claiming an interest in compensation to be made on account of the acquisition of land under this Act; and a person shall be deemed to be interested in land if he is interested in an easement effecting the land:x x x x'

What calls for notice is that this is merely an inclusive definition and precedent has extended the concept of a 'person interested' to the widest of a amplitude. As a necessary consequence, apart from landowners every mortgagee, a tenant, a lessee, a person having an easement over the land and a host of others would come within the phraseology of the language employed m Section 9(3) of the Act. In essence in the same parcel of land, there may be as many as tan persons interested, whose interest may either be identical and for that matter contradictory. Would the law insist upon the individual service upon a11 such persons with such rigour that a failure to serve any one of them would lead to vitiation of proceedings from the stage of the failure to issue notice under Section 9(3) onwards? I do not think so. In large acquisitions where thousands of acres of land are sometimes acquired and the number of persons interested may well be myriad in number, to hold that any inadvertent failure to serve even one of them would vitiate the proceedings would necessarily lead to a virtual hamstringing of the proceeding:. for the acquisition of land for public purposes. The argument ab inconvenienti clearly and implacably arises and was rightly so noticed in Mehanta Sri Sukdev Saran Dev's case. (1942-76 Cal LJ 430) (supra).

12. Lastly; it is manifest from the long. line of precedents of. Allahabad, Andhra Pradesh, Bombay, Calcutta, Delhi Kerala, Madras,.Patna, and Punjab High Courts that the view, that a bona fide infraction of Section 9(3) is in no way fatal, is clearly plausible and well accepted one. It is a settled canon of construction that even if two views of a provision are possible, the one which leads to an anomalous if not mischievous results ought to be avoided. I have earlier highlighted the anomalous results which might flow if the award under Section 12 and the proceedings thereafter are to be vitiated by any or every failure to serve one or the other of innumerable persons interested in the acquisition or compensation of land. The Act is designed for expeditious acquisition for larger public purposes. Any such strained construction would. put the public weal forever under jeopardy of a cantankerous or an obstructive landowner or litigant. Therefore, even if two views were possible I would for this additional ground opt for the well-accepted one that mere non-service of a notice under Section 9(3) on a host of persons interested cannot ipso facto lead to fatal results of vitiating the award either in part or as a whole and the proceedings subsequent thereto.

13. What then calls for pointed notice is the fact that on this specific legal issue, the view of the learned single Judge (reported in 1979 Pun LS 18) was totally in line with what I am inclined to take. He has indeed, categorically, held as under:--

'......In the instant case admittedly the petitioner was not served with a personal notice a required by this section, bat the question arises whether the omission of the instant type vitiates the entire proceedings or not?

The precise question came up for consideration before a. Division Bench of this court in Jhandu Lal v. State of Punjab, AIR 1959 Punj 535, and it was held that the omission to issue a notice under S. 9(1) of the Act was nothing more than an omission of a preliminary step and it could not be said that by the non-issue of the notice the entire proceedings were invalidated.

The same point was taken by a Division Bench of Patna High Court in Shivdev Singh v. State of Bihar, AIR 1963 Pak 201. I am in respectful agreement with the view enunciated in these authorities. The. other consideration which impels me to fall in line with the above two judgments is that even if there is some irregularity in the proceedings regarding the determination and the quantification of the compensation, it is open to a landowner to have the matter referred to the District Court under Section 18 of the Act..........'

14. To finally conclude, the answer to the question formulated at the outset is rendered in the negative and it is held that a bona fide, omission to serve a notice envisaged by Section 9(3) of the Act on anyone of the numerous persons interested in claiming compensation cannot vitiate the award of the Collector rendered under Section 12 and the proceedings subsequent thereto.

15. Applying the above, it would necessarily follow that the judgment under appeal cannot, therefore, be sustained or supported on the ground that the award of the Collector and the proceedings. thereafter would stand vitiated by the mere fact that the respondent Lt. Col. Gurdial Singh was not personally and individually served under Section 9(3) of the Act, when no challenge. whatsoever was laid to the public notice under S. 9 (1),and (2) of the Act.

16. Now once it is held as above, reference must be made to the recent Full Bench decision in Sher Singh v. Union of India, (1983) 85 Pun LR 86: (AIR 1983 Punj & Har 107), wherein, it has been held in unequivocal terms as under:--

'....... In such a situation, the Court's directions to file a fresh application under Section 18 (irrespective of the fact whether it had been earlier filed at all or not) would in effect override the legislative mandate. It is obvious that the express condonation of delay has implicit in it the finding that earlier no application had been filed in time and the condoning of 7 years' delay therefore, may well be a super-statutory direction. In practical terms, therefore, conferring on the petitioner a right to file a fresh application under Section 18 without a finding in his favour that any such application had been earlier filed at all is in a way abrogating the mandatory requirement of filing a written application and that too within the specific and prescribed periods of time. To put it in other words. to claim the remedy under Section 18 of the Act, the statutory procedural requirements be strictly fulfilled and in their a absence no right can flow therefrom..........

In the present case, contrary to the aforesaid, authoritative enunciation by the Fu11 Bench, the learned single Judge even whilst finding that the respondent had in fact not filed any reference under Section 18 of the Act, has directed the condonation of the laches and irrespective of the existing. period of delay or its justification, has further allowed respondent the period of three months for now filing an application afresh. This infracts the rule laid down by the Full Bench and overrides the statutory limitation under Section 18 of the Act-and is unsustainable in taw and, therefore, has to be set aside. The appeal is consequently allowed and the writ petition of the respondent is hereby dismissed. There will be no order as to costs.

S.C. Mital, J.

17. I agree.

D.S. Tewatia, J.

18. I agree.

19. Appeal allowed.

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