Hardayal Hardy, J.
(1) This is an appeal under Clause 10 of the Letters Patent against the judgment of V. S. Deshpande J. whereby the appellants' petition under article 226 of the Constitution was dismissed.
(2) The appellants claim to the owners of certain land with respect to which a notification under Section 4 of the Land Acquisition Act, 1894 hereinafter called the Act, was issued. The appellants filed objections under section 5A of the said Act which were heard by the Land Acquisition Collector and thereafter the land was acquired by the Government by a notification under Section 6. In due course, an award offering compensation was made by the Collector and it is not disputed that the appellants accepted the compensation which was paid to them quite some time back. It however appears that during the pendency of the appeal an order was made by this Court whereby it was directed that if the money withdrawn by the appelllants was redeposited by them by 11th March, 1969 proceedings for their dispossession from the land in question would be stayed. We are informed that the appellants made the necessary deposit, with the result that the possession of the land is still with them.
(3) In the petition the acquisition was challenged by the appellants on various grounds but during the course of arguments before the learned Single Judge the attack was restricted to only one ground. The contention raised was that the provisions of Section 5A had not been complied with inasmuch as the Collector had not applied his mind to the objections, that this was evident from the fact that he had not expressed any particular opinion about the objections, nor did he make any positive recommendations in the report submitted by him to the appropriate Government. The report showed that the Collector had left the matter to the Government either to proceed to acquire the land under Section 6 or withdraw from acquisition under Section 48 of the Act. According to the appellants, the provisions of Section 5A were mandatory and it was obligatory on the Collector not only to afford an opportunity of a hearing to the objectors but also to make a positive recommendation and since the collector had failed to do his duty the acquisition was vitiated.
(4) Learned Single Judge rejected the contention holding that the primary purpose of Section 5A is to give an opportunity to the person whose land is proposed to be acquired to object to the proposal and it is only that part of the section which can be regarded as mandatory. These section no doubt provides that the Collector should make a report containing his recommendation on the objections: but the report is meant only for the information of the Government and as such it is not imperative that the Collector should express therein his own opinion on the objections and make a recommendation for or against the proposal.
(5) The appellants' counsel took serious exception to this part of the judgment and urged that compulsory acquisition of property being an encroachment on the fundamental rights of a citizen guaranteed under Articles 19 and 31 of the Constitution can bejustified only if there is strict compliance with the provisions of law authorising such acquisition. According to the learned counsel, the procedural safe guards are as important as the substantive provisions regarding the existence of public purpose and compensation. By section 5A an opportunity is given to the person interested in the land which has been notified under Section 4(1) of the Act to raise objections either to the acquisition of the land or of any land in the locality, as the case may be. On those objections being raised, it is the duty of the Collector to give the objector an opportunity of being heard and also to make such futher inquiry, if any, as he thinks necessary and than to submit the case for the decision of the appropriate Government together with his own recommendation on the objections. The decision of the appropriate Government on the objections is no doubt final, but that does not dispense with the necessty of the report and the recommendation made by the Collector. When the appropriate Government is satisfied, after considering the repcrt, if any, made under Sub-section (2) of Section 5A that any particular land is needed for a public purpose, it may make a declaration under section 6 to that effect. By sub section (3) under section 6 the declaration so made is conclusive evidence that the land is needed for a public purpose.
(6) It was argued that the only opportunity which a person whose land is proposed to be acquired, has, of objecting to the proposed acquisition, is before the Collector. There is no provision in the Act which entitles the objector to approach the Government direct nor is there any provision for a hearing or inquiry by the Government in the presence of the objector. The Land Acquisition Collector is generally a Revenue Officer with considerable knowledge of local conditions. His opinion and recommendation though not binding on the Government necessarily have, or at any rate, should have considerable weight. If the requirement of sub-section (2) of section 5A as to the hearing of objections and making of an enquiry by the Collector, is mandatory there is no apparent reason why the other requirement about his making a report containing his recommendation on the objections, should not be held to be equally imperative.
(7) Learned counsel urged that this very argument had been addressed before the learned Single Judge but was repelled on the basis of a decision of the Supreme Court in Abdul Hussain Tayabali v. State of Gujarat. The said decision however, did not lay down that the provision in section 5A with regard to expression of opinion and making a positive recommendation by the Collector was not mandatory.
(8) The appellant's counsel on the other hand referred to the decisions of the Supreme Court in Smt. Somawanti v. The Stete of Punjab. Nandeshwar Prasad v. U.P. Government and (3) State of Madhya Pradesh v Vishnu Prashad Sharma. In the last mentioned case it was held that sections 4, 5A and 6 of the Act are integrally conrected Wanchoo J. who spoke for himself and Mundholkar J observed, 'two things must be borne in mind while construing sections 4, 5A and 6. The first is that the Act provides for acquisition of land of persons without their consent and in such case the provisions of the statute must be strictly construed. Secondly, in interpreting these provisions the Court must keep in view on the one hand the public interest which compels such acquisition and on the other the interest of the person who is being deprived of his land without his consent.'
(9) We have carefully examined the decision in Abdul Hussain Tayabali's case and are of the opinion that the precise point raised before us was not considered in that case. It was no doubt held in that case that the report of the Collector had only a recommendatory value and was not binding on the Government, but it was also said there that under section 5A it was the duly of the Collector to hear objections of the owner, take them on record and then submit his report to the Government. The section also required the Collector to send Along with his report the entire record of his enquiry which would obviously include the objections ; but merely because the report had a recommendatory value and was not binding on the Government, did it necessarily follow from this that the Collector need not make any recommendation at all
(10) The learned Single Judge has held that the making of recommendation is not imperative and its absence would not vitiate the acquisition. Firstly, because the Collector is net the authority who decides the objection Secondly, because sub-section (1) of section 6 contemplates a case in which no report of the Collector may be available to the Government at all and yet the Government can take a decision to acquire the land in a particular case ; Thirdly, because section 5A shows that the purpose of the report of the Collector is merely to inform the Government. The Collector is not under any duty to show his report to the objectors and Fourthly, because the final decsion as to whether a particular land should be acquired is of the Government which has before it the objections of the petitioners as well as the record of the inquiry made by the Collector and there is nothing to show that the absence of Collector's report with or without his recommendation can ever affect the validity of the decision of the Government in a particular case.
(11) The argument of the learned counsel for the appellants is that none of the reasons given by the learned Judge warrant the conclusion reached by him. The fact that the Collector is not the authority who decides the objections and the report of the Collector is not to be shown to the objectors and the final decision as to whether a particular land should be acquired, rests with the Government, hardly furnish any justification for holding that the making of recommendation on the objections is not a mandatory requirement of section 5A.
(12) We find substance in this argument. The very object of appointing an officer of the status of Collector to hear objections and to make such further inquiry as he thinks necessary, is that he should make a report in respect of the land which has been notified in section 4(1), or make different reports in respect of different parcels of such-land, to the appropriate Government. The section further provides that the report should contain his recommendation on the objections. If he is not to make a report or to make a report which does not contain his recommendation on the objections, we fail to see what purpose will be served by his hearing objections and holding an inquiry It is no doubt true that the real purpose of the report and the recommendation made therein is to inform the mind of the Government and the Government has a right to reject the recommendation. But the very fact that the report and the recommendation made therein, are intended to the Government in making up its mind shows the need for them.
(13) It has been laid down in Abdul Hussain Tayabali's case that the section does not contemplate a second inquiry. It thereforee follows that the only opportunity which the objectors have, is to appear and present their point of view before the Collector. It is not as if the Collector is merely to act as a post office for receiving objections and transmitting them to the appropriate Government. He has to apply his own mind to the objections and if necessary, to supplement the material placed before him by the objectors, by making his own inquiry and then to submit a report which must contain his recomendation on the objections. The submission of a report containing his recommendation on the objections is the culminating point of the process which began with the filing and hearing of the objections and is thus an integral part of the procee- dings under section 5A of the Act.
(14) It may be that after holding the inquiry and hearing objections the Collector comes to the conclusion that the land proposed to be acquired is wholly unsuitable for the purpose for which it is to be acquired, or while some parcels of that land are suitable the others will not serve the purpose which the Government has in view. Since the owner of the land will have no further opportunity of objecting to the proposed acquisition a favorable report by the Collector may go a long way in influencing the decision of the Government and save his land from being acquired against his consent, just as an adverse report may tip the scales heavily against him. When the statute mentions the authority who shall hear objections against the action which the Government intead to take and lays down that the authority shall make his report containing his recommendations on the objections, the obvious intention is that the authority should perform his duly in the manner laid down by the statute. The failure of the Collector to send a report or to send a report without his recommendations, on the objections would in the circumstances, be a sheer exercise in futility and will reduce the inquiry into a farce.
(15) Learned Judge's reference to the words 'after considering the report, if any, made under Section 5A, sub-section (2)' in sub-section (1) of Section 6 also does not appear to us to be helpful to the argument that has found favor with him. According to the learned Judge, Section 6(1) contemplates a case in which no report of the Collector may be available to the Government at all and even then the Government can take a decision to acquire the land in a particular case. In our opinion, the use of the words 'if any' in sub-section (1) of Section 6, does not warrant the conclusion that the report need not be made at all or if made, need not contain what the section says it should. The words 'if any' have been used in Section 6(1) only with reference to a case which comes within the exception contained in Section 17 of the Act. It is only when action is taken under Section 17(4) of the Act that it is not necessary to follow the procedure in Section 5A and a notification under Section 6 can be issued without a report from the Collector under Section 5A. The usual procedure on the other hand, is that a notification under section 6 can be issued only after the procedure under section 5A has been followed.
(16) For the view we are taking, we find support from the decision of the Supreme Court in Nandeshwar Prasad v. U P. Government, where page 1221 of the report, it is said that compliance with the provisions of Section 5A is necessary before a notification can be issued under Section 6 and that the words 'if any' in the clause 'after considering the report, if any, made under Section 5A' have been used only to cover the case of an exception under section 17.
(17) On behalf of the respondents, our attention was invited to an un-reported decision of a Division Bench of the Supreme Court (K. S. Hegde and A. N. Ray JJ.) in Civil Appeal No. 1637 of 1966. Chandar Rama Patil v. The State of Maharashtra, decided on 19th August 1969 where it was said :-
'SECTION 6 of the Act does not indicate that a report is imperative. The words used are 'report, if any' and the implication is that there need not be a report in all cases.'
The above observations do not appear to us to be contrary to what was said in Nandeshwar Prasad's case as the learned Judges do not say that a declaration under Section 6 of the Act can be made in all cases, without there being a report by the Collector. We are, thereforee, unable to agree with the learned Judge that while the holding of inquiry and the hearing of objections is obligatory on the Collector and that a part of Section 5A of the Act is mandatory in character, the provision regarding submission of a report or at any rate, a report containing the Collector's recommendations, on the objections, is not and that the requirement of Section 5A will be satisfied even if there are no such recommendations.
(18) Mr Devinder K. Kapur, learned counsel for the respondents, contended that the learned Single Judge has futher held that even if it is assumed that the Collector was bound to apply his mind to the objections of the petitioners and to express an opinion thereon it cannot be said that the Collector had not done so. In this connection our attention was invited to the Collector's report which is Annexure Q to the petition. According to the learned counsel, the said report clearly shows that there is not only application of mind on the part of the Colector but there is also a recommendation by him.
(19) We are inclired to agree with the respondents' counsel. In his report the Collector has not only tried to summarise the appellants' objections which fact i self indicates application of mind by him. but it appears to us that he has also made his own recommendations thereon. Here is an extract from the report :-
'ACCORDINGto the original objection filed on behalf of the petitioners on 10th December, 1959, it was contended by the objection petitioner that they intended to develop the land after the sanction of the plan by the Delhi Municipal Corporation, and as such the acquisition contravenes the intention of the Land Acquisition Act in as much as the purpose of the acquisition has been fulfillled by the petitioners. In their additional objections the objection petitioners, referring to the ruling laid down in Vishnu Pershad v. State of Madhya Pradesh 1962 M P. 270 contended that the notification of the land under section 4 of the Land Acquisition Act dated 13th November, 1959 has become infructuous and the Government would have to issue a fresh notification under section 4 if it insists on acquiring petitioners land. The legal aspect of the objections filed by the petitioners may kindly be considered by the Housing Department for the issue of the final declaration under section 6 of the Land Acquisition Act.'
The last sentence in the extract from the report contains a clear recommendation by the Collector that the legal aspects of the objections merit consideration by the Housing Department of the Government and may thereforee be considered before a final declaration under Section 6 of the Act is issued. It is not necessary that the Collector's recommendation on the objections should lake the form of either agreeing or disagreeing with them The recommendation may as well take the shape of a suggestion to the appropriate Government that the objections risa certain issues, in this case, issues of law, which maybe examined. Even if the Collector's own opinion on the legal issues is not there it will nonetheless be a recommendation, nothing more and nothing less.
LEARNEDcounsel for the appellants argued that the report also revealed that the Collector was indecisive in his mind because he said towards the end of his report that he was sending two draft notifications, one for withdrawal from acquisition under Section 48 and the other for a declaration under Section 6. It was argued that this showed lack of application of mind by the collector and abdication of his functions under Section 5A. We do not think so. Firstly, the sanding of draft notifications is no part of the Collector's duty under section 5A. It is merely a matter of administrative convenience or departmental routine. Secondly the very fact that the Cellector was recommending to the Government that they should consider the legal aspects of the objections, implies that he was anticipating that the objections may either prevail or fail. He was conscious of the fact that the final decision on the objections lay with the Government. He knew that in one case, the Government has to withdraw from acquisition while in the other case it would proceed further by making a declaration under Section 6. There is thereforee no question of lack of application of mind or abdication of his functions by the Collector. We thereforee agree with the learned Single Judge when he says. 'My second finding, thereforee, is that it is not shown that the Collector did not apply his mind to the objection of the petitioners. On the contrary, he considered the objections as purely legal, and, thereforee, deliberately refrained from expressing any opinion about them and left it to the Government to decide them.'
(20) The result of the above finding is that the appeal fails and is dismissed with costs. Counsel's fee Rs 500.00.