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Mali Kodarbhai Motibhai Vs. the State of Gujarat and anr. - Court Judgment

LegalCrystal Citation
SubjectProperty
CourtGujarat High Court
Decided On
Judge
Reported in(1971)12GLR328
AppellantMali Kodarbhai Motibhai
RespondentThe State of Gujarat and anr.
Cases ReferredNarendrajit Singh v. The State of U.P. and Ors.
Excerpt:
- - 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. there may conceivably be cases like the present one, when, although the urgency clause under sub-section (4) of section 17 of the act is invoked at the time of publication of the preliminary notification under sub-section (1) of section 4 and although section 6 declaration is made within a reasonable time, section 9 notices are issued after a considerable lapse of time and the taking of possession of the land is consequently postponed. there may as well be cases when the owner of the land or the persons interested may not be posted with knowledge of the.....m.u. shah, j.1. this is a letters patent appeal under clause 15 of the letters patent against the judgment dated october 30, 1965 delivered by a single judge of this high court in second appeal no. 1149 of 1960, dismissing the appeal. it involves a substantial question of interpretation of the second part of sub-section (1) of section 4 of the land acquisition act, 1894 (i of 1894), which will hereafter be referred to as 'the act', which provides:' ...and the collector shall cause public notice of the substance of such notification to be given at convenient places in the said locality.' the learned judge has taken the view that this second part of the sub-section is a directory and not a mandatory provision of law. in his opinion, the legislature could not have intended to make the latter.....
Judgment:

M.U. Shah, J.

1. This is a Letters Patent Appeal under Clause 15 of the Letters Patent against the judgment dated October 30, 1965 delivered by a single Judge of this High Court in Second Appeal No. 1149 of 1960, dismissing the appeal. It involves a substantial question of interpretation of the second part of Sub-Section (1) of Section 4 of the Land Acquisition Act, 1894 (I of 1894), which will hereafter be referred to as 'the Act', which provides:' ...and the Collector shall cause public notice of the substance of such notification to be given at convenient places in the said locality.' The learned Judge has taken the view that this second part of the sub-section is a directory and not a mandatory provision of law. In his opinion, the Legislature could not have intended to make the latter part of the sub-section mandatory in all circumstances.

2. The relevant facts may first be shortly stated. The appellant, named Mali Kodarbhai Motibhai, claims to be a protected tenant of the southern half of land bearing survey No. 27 situated in village Jhalod in Taluka Jhalod in District Panchmahals. The preliminary notification under Section 4(1) of the Act of the intended acquisition of the said land bearing date September 11,1951 was published in the Bombay Government Gazette dated September 20,1951. It was notified that the lands specified in the schedule thereto were likely to be needed for a public purpose, viz. for State Transport. The notification is not shown to have been preceded by a preliminary survey contemplated under Section 3A in new Part I-A of the Act as inserted by Section 2 of the Land Acquisition (Bombay Amendment) Act, 1945 (Act 20 of 1945). The notification published also invoked the urgency clause under Section 17(4) of the Act and stated that the Government of Bombay was further pleased to direct under Sub-Section (4) of Section 17 of the Act that as the acquisition of the said land was urgently necessary, the provisions of Section 5A of the Act shall not apply in respect of the said land. It is common ground that public notice of the substance of such notification to be given at convenient places in the locality in question which was required to be given by the Collector as provided in the second part of Sub-section (1) of Section 4 of the Act was not given. The declaration under Section 6 was there after made on November 19, 1951 and it was published in the Bombay Government Gazette dated November 22, 1951. Section 9 notice was served on the appellant on June 29, 1953. Long thereafter on April 25, 1954, the Collector purported to take possession of the lands under acquisition. But it appears that the appellant entered into possession of the said lands soon there after and he continued to be in possession of the said lands at the date of the institution of the first civil suit challenging the acquisition. The appellant had first filed Civil Suit No. 148 of 1955 on August 10, 1955, in the Civil Court at Dohad. In that suit, he was one of the plaintiffs along with some others who were affected by the acquisition. The suit was filed against the S.T. Corporation and its Manager for a permanent injunction restraining them from taking possession of or constructing any building on the said land. The Government was not made a party in that suit. The suit was dismissed by the trial Court and the appeal there over was dismissed by the learned District Judge. A second appeal that was filed in this High Court was not admitted. During the pendency of that appeal, the present appellant filed another suit, viz. Civil Suit No. 3 of 1957, against the State of Bombay and the S.T. Corporation. In this suit, the plaintiff had, inter alia, challenged the award on the ground that mandatory provisions of Section 4(1) of the Act were not complied with and, therefore, the award was unenforceable. The suit was for a declaration that the award which was, in the meantime, passed by the District Deputy Collector on July 25, 1956, was a nullity. He also prayed for the relief of injunction restraining the defendants, namely, the State of Gujarat and the Gujarat State Road Transport Corporation, Ahmedabad, from taking possession of the land. The suit came to be dismissed by the learned Civil Judge and Civil Appeal No. 75 of 1959 against the said decision was dismissed by the learned District Judge, Panchmahals. Being aggrieved, the appellant filed Second Appeal No. 1149 of 1960 in this High Court. The said appeal has been decided by our learned brother N.K. Vakil, J. by his judgment dated October 30, 1965, and it is against the said judgment that this Letters Patent Appeal is directed.

3. Mr. G.P. Vyas, learned advocate appearing on behalf of the appellant, who was plaintiff in the suit, has contended before us that the giving of the public notice of the substance of the notification published under the first part of Sub-section (1) of Section 4 of the Act was a mandatory provision of the Act and the non-compliance with such requirement would render the land acquisition proceedings void. In support of his submission, he has relied upon the observations of the Supreme Court in Khub Chandandothers v. State of Rqjasthan and Ors. : [1967]1SCR120 wherein Subba Rao, C.J., speaking for the Supreme Court, while dealing with a case under the Rajasthan Land Acquisition Act (24 of 1953), Section 4(1), 4(2) and 5(2), observed that the provision of notice contemplated by Section 4(1) of the Rajasthan Act is mandatory. Relying upon this decision, Mr. Vyas has contended that Section 4(1) of Act 1 of 1894 (the Act) is in pari materia with Section 4(1) of the Rajasthan Act and, therefore, relying upon the observations of the Supreme Court made therein, we should take the view that the giving of public notice at convenient places in the concerned locality by the Collector was a mandatory requirement and non-compliance therewith would render the notification under Section 4 void and the land acquisition proceedings taken pursuant thereto equally void. Now, it is true that Section 4(1) of the Rajasthan Act is rnpari materia with Section 4(1) of the Act It provides for publication of preliminary notification and powers of officers thereupon and reads:

Section 4(1) Whenever it appears to the Government that land in any locality is needed or is likely to be needed for any public purpose, a notification to that effect shall be published in the Rajasthan Gazette, and the Collector shall cause public notice of the substance of such notification to be given at convenient places in the said locality.

Section 4(1) of the Act (I of 1894) reads:

Whenever it appears to the appropriate Government that land in any locality is needed or is likely to be needed for any public purpose, a notification to that effect shall be published in the Official Gazette, and the Collector shall cause public notice of the substance of such notification to be given at convenient places in the said locality.

Sub-section (2) of Section 4 of the Rajasthan Act is also in pari materia with

Sub-section (2) of Section 4 of the Act and reads:

Section 4(2) Thereupon it shall be lawful for any officer, generally or specially authorised by the Government in this behalf, and for his servants and workmen-

(a) to enter upon and survey and take levels of any land in such locality;

(b) to dig or bore into the sub-soil;

(c) to do all other acts necessary to ascertain whether the land is adapted for such purpose;

(d) to set out the boundaries of the land proposed to be taken and the intended line of the work (if any) proposed to be made thereon:

(e) to mark such levels, boundaries and line by placing marks and cutting trenches; and where otherwise the survey cannot be completed and the levels taken and the boundaries and line marked, to cut down and clear away any part of any standing crop, fence or jungle.

Section 5 of the Rajasthan Act provides for report by Collector and publication of a further notification and giving of public notice and reads:

Section 5 Report by Collector. (1) The Collector or a Revenue Officer specially empowered by the Government in this behalf shall forward to the Government with his remarks a report on the result of the survey, if any, and other operations described in and taken under Sub-section (2) of Section 4(2) After considering the report, if any, submitted under Sub-section (1) or, if no such report has been received, at any time after the issue of the notification under Sub-section (1) of Section 4, the Government shall publish a further notification in the Rajasthan Gazette, giving sufficient description of the land already notified under the said Sub-section (1) of Section 4 to enable it to be identified and stating the purpose for Which it is or is likely to be needed, its approximate area and situation and, where a plan has been made of the land, the place where such plan may be inspected, and the Collector shall cause public notice to be given of the substance of the said further notification at convenient places on or near the land to be acquired.

Such a provision is not to be found in our Act, and is a preliminary step to the hearing of objection of persons interested provided for in Section 5A of the Rajasthan Act which is in pari materia with Section 5A of our Act. Having regard to the scheme of the Rajasthan Act, Their Lordships of the Supreme Court have reached the conclusion that the provision in the second part of Sub-section (1) of Section 4 of the Rajasthan Act is mandatory. The relevant observations to be found in the decision at page 1077 of the report read:

Under Sub-section (2) of Section 4 of the Act, after such a notice was given, the officer authorized by the Government in that behalf could enter the land and interfere with the possession of the owner in the manner prescribed there under. 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. The fact that the owner may have notice of the particulars of the intended acquisition under Section 5(2) does not serve the purpose of Section 4, for such a notice shall be given after the appropriate officer or officers enter the land and submit the particulars mentioned in Section 4. The objects of the two sections are different: the object of one section is to give intimation to the person whose land is sought to be acquired, of the intention of the officer to eater his land before he does so and that of the other is to enable him to know the particulars of the land which is sought to be acquired.

The observations further read:

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 'there upon' 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.

It is clear that the Supreme Court decision proceeds on a consideration of the impact of Sub-section (1) of Section 4 of the Rajasthan Act as being condition precedent to the exercise of the powers by the competent officer to enter upon and survey the land in such locality and to the exercise of other powers provided for in Sub-section (2) of Section 4 of the Rajasthan Act. But, in the Act as applied to Gujarat, a provision similar to Sub-Section (2) of Section 4 of the Rajasthan Act and also the Central Act is inserted as Section 3A by Section 2 of the Land Acquisition (Bombay Amendment) Act, 1945 (Act XX of 1945) at a stage prior to Section 4 of the Act and provides for a preliminary survey before the publication of preliminary notification under Section 4 of the Act. Section 2 of the Land Acquisition (Bombay Amendment) Act, 1945 (Act XX of 1945) has inserted Part I-A containing sees. 3A and 3B which respectively provide for a preliminary survey and payment of damages. Section 3A of the Act reads:

3-A. For the purpose of enabling the State Government to determine whether land in any locality is needed or is likely to be needed for any public purpose, it shall be lawful for any officer of the State Government in the Public Works Department, or any other officer either generally or specially authorized by the State Government in this behalf, and for his servants and workmen-

(i) to enter upon and survey and take levels of any land in such locality,

(ii) to mark such levels,

(iii) to do all other acts necessary to ascertain whether the land is adapted for such

purposes, and

(iv) where otherwise the survey cannot be completed and the levels taken, to cut down and clear away any part of any standing crop, fence or jungle : Provided that no person shall enter into any building or upon any enclosed Court or garden attached to a dwelling house unless with the consent of the occupier thereof without previously giving such occupier at least seven days' notice in writing of his intention to do so.

Sub-section 3B as inserted by the Bombay Amendment Act, 1945 provides for payment of damages and reads:

3-B. The officer of the State Government in the Public Works Department, and any other officer so authorised shall at the time of such entry pay or tender payment for all necessary damage to be done as aforesaid and in case of dispute as to the sufficiency of the amount so paid or tendered, shall at once refer the dispute to the decision of the Collector or other chief revenue officer of the district and such decision shall be final.' The aforesaid newly inserted Section 3A is to be found in Part I-A as applied to the territories of the Bombay State and now of the Gujarat State. It would appear that by reason of Section 2 of the Bombay Amendment Act, 1945, a new provision for a preliminary survey prior to the publication of the preliminary notification and the exercise of powers thereupon under Section 4 of our Act has been made. Section 3A of our Act gives powers of entry on the land to any officer of the State Government in the Public Works Department or to any other officer either generally or specially authorized in that behalf and to his servants and workmen. After making such an entry which shall be considered to be lawful, the officer concerned can do one or more of the acts provided in the relevant clauses of Section 3A of our Act (the Act as applied to Gujarat). Although this power is meant for a preliminary survey with the object of enabling the State Goverement to determine whether land in any locality is needed or is likely to be needed for any public purpose, the right to enter lawfully on the land can be exercised prior to the publication of the notification under Section 4(1) of the Act and to the giving of the public notice under the second part of Sub-section (1) of Section 4 of the Act. Having regard to the scheme of the Act as applied to Gujarat, it cannot be said that the right of lawful entry is exercisable only after the publication of the preliminary notification under Section 4 of the Act. The powers of the competent officers to enter upon the land is not conditional upon the publication of the preliminary notification or the giving of or causing of public notice of the substance of such notification to be given at convenient places in the said locality. The expressions 'thereupon' and 'shall be lawful' occurring in Section 4(2) of the Act as applied to Gujarat cannot, therefore, be held to indicate that unless such a public notice is given, the competent officer or the servant cannot lawfully enter upon such land. It is not a necessary pre-condition for the exercise of the power of entry. The decision of the Supreme Court which dealt with a case under the Rajasthan Land Acquisition Act in which there is no provision similar Section 3A of the Gujarat Act, cannot thus be relied upon by Mr. Vyas to canvass the view that by reason of the provision of lawful entry to be found in Sub-section (2) of Section 4 of the Act, the giving of public notice is mandatory.

4. We will now proceed to examine the nature of the direction to be found in the second part of Sub-section (1) of Section 4 of the Act apart from the aforesaid decision of the Supreme Court. In construing the provision, the observations of the Supreme Court in Khub Chand and others v. State of Rajasthan and others (supra) which lay down the rule of construction of such a statute will be helpful. The observations to be found at page 1077 are:.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 that 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 considerations.

Now, as aforesaid, Sub-section (1) of Section 4 of the Act provides for publication of a preliminary notification and causing of the public notice of the substance of such notification to be given at convenient places in the concerned locality. Sub-Section (1) provides:

Whenever it appears to be appropriate Government that land in any locality is needed or is likely to be needed for any public purpose, a notification to that effect shall be published in the Official Gazette, and the Collector shall cause public notice of the substance of such notification to be given at convenient places in the said locality.

5. It is not in dispute before us that the publication of a preliminary notification in the official Gazette is a mandatory provision to the exercise of the powers by the officer under the Act. The second part of Sub-section (1) speaks of causing of public notice to be given. The notice to be given is of the substance of the notification which is to be published in the Official Gazette and for which a provision is made in the first part of Sub-section (1) But, whereas the preliminary notification which is the first necessary initial step in the acquisition proceedings is to be published by the appropriate Government and in the Official Gazette, the public notice of the substance of such notification is to be given by the Collector and such notice is to be given at convenient places in the concerned locality. Such public notice is to be given by a different authority, viz. the Collector, and this is a second necessary step. The notification and the public notice are thus two distinct requirements provided for in Sub-section (1) of Section 4 of the Act. The relevant words used in the second part of Sub-section (1) are 'and the Collector shall cause public notice of the substance of such notification to be given at convenient places'... The expressions 'shall cause public notice of the substances of such notification to be given' in their ordinary significance indicate that the provision is mandatory. Such a public notice is far different from a notice to individuals under Section 4 of the Act. The object sought to be achieved by causing such a public notice to be given appears to be to bring home the knowledge of the intended acquisition to persons interested. If such a public notice is not given, the land intended for acquisition may be burdened without knowledge of the intended acquisition and the rights of innocent third parties may intervene and may be prejudicially affected before a declaration under Section 6 of the Act is made. Section 23 of the Act lays down the matters which shall be considered by the Court in determining the amount of compensation to be awarded for land acquired under the Act. The market value of the land is to be considered as at the date of the publication of the notification under Section 4. Clauses Firstly to Seventhly of Section 24 of the Act lay down the matters which the Court shall not take into consideration in determining the compensation; these matters are to be neglected for the purpose. Section 24 of the Act in clause Seventhly provides:

24. But the Court shall not take into consideration seventhly, any outlay or improvements on, or disposal of, the land acquired, commenced, made or affected without the sanction of the Collector after the date of the publication of the notification under Section 4, Sub-section (1).

Costs of improvements incurred after publication of notification under Section 4(1) and disposal of the land made thereafter and any subsequent outlay will have to be excluded from consideration while determining the compensation unless made or effected with the prior sanction of the Collector. This condition requiring sanction of the Collector in order to protect the stated acts presumes knowledge of the intended acquisition in the owner or persons interested. If with knowledge of the acquisition proceedings initiated by the preliminary notification, the owner or persons interested invest capital on the land to be required, they do so at their cost and risk. Moreover their power to deal with the property in any manner whatsoever after the publication of the preliminary notification under Sub-section (1) of Section 4 comes to an end as soon as the public notice contemplated under the second part of the Sub-section is caused to be given. It is significant that such public notice is to be of the substance of the preliminary notification of the intended acquisition. It is only thereafter that the total restriction on the powers of the owner or persons interested to deal with the property in question comes into effect. This is in accord with the general principle of English law stated by Lord Lindlay in the following words in Mercer v. Liverpool St Helen's And South Lancashire Railway 1204 A.C. 461:

The broad principle appears to be that it is not competent for an owner of land who has received notice to treat to deal with any of his land either taken or injuriously affected by the company, so as to increase the burden of the company as regards the compensation to be made in respect of the land or any of it.

Unless the public notice required to be given at convenient places in the concerned locality stating the substance of such notification is caused to be given by the Collector, persons interested con not be imputed with a notice of the intended acquisition. Any outlay or improvements on or disposal of the land acquired, commenced, made or effected after the date of publication of notification under Sub-section (1) of Section 4 of the Act cannot otherwise be ignored or neglected. It appears to us that it is with this object in mind that the Legislature has advisedly used the expression 'shall cause public notice. to be given.' The term 'shall' is here used in its ordinary significance as mandatory. Such a construction will not lead to any absurd or inconvenient consequence, nor will it be at variance with the intent of the Legislature to be collected from other parts of the Act. We have taken into consideration the relevant provisions of the Act, viz. sees. 4, 6, 7, 8, 9, 11, 16 and 17 of the Act, the setting in which the expression 'shall cause' appears, the object for which the direction is given in the second part of Sub-section (1) and, in our opinion, the consequences that would flow from the infringement of such direction would be serious and would prejudicially affect the persons interested, may be innocent purchasers or third parties. It is to avert this mischief that the Legislature appears to have thought that it was absolutely necessary that public notice of the substance of the notification is caused to be given at convenient places in the concerned locality and by the Collector. The expression has a compulsory force. The real intention of the Legislature would thereby be effectuated. In our opinion, therefore, the second part of Sub-section (1) of Section 4 is mandatory. If the expression 'shall' is construed as 'may' the object of the sub-section itself will be defected.

6. Our learned brother Vakil J. while dealing with the provision Seventhly in Section 24 of the Act has observed:

It is true that Sub-clause 7 of Section 24 does say that if these things arc done after the notification is published under Section 4(1), then the consequences mentioned therein shall follow. But, as pointed out, the stress is on the publication of the notification. Apart from that, the other important thing to notice is that this only affects the right to receive compensation. It does not go to the root of the right of the ownership of the land or such other interest in the land

With respect, this is not wholly true. It appears that the rights of persons who may come on the land after the publication of the preliminary notification under Sub-section (1) of Section 4 without notice of such intended acquisition and the equities in favour of innocent purchasers and third parties and also in favour of owners and persons interested who make an outlay or improvements in the land or dispose of the land without notice of acquisition have not been considered. These are indeed valuable rights incidental to ownership rights. There may conceivably be cases like the present one, when, although the urgency clause under Sub-section (4) of Section 17 of the Act is invoked at the time of publication of the preliminary notification under Sub-section (1) of Section 4 and although Section 6 declaration is made within a reasonable time, Section 9 notices are issued after a considerable lapse of time and the taking of possession of the land is consequently postponed. There may as well be cases when the owner of the land or the persons interested may not be posted with knowledge of the published notification. Having regard to the conditions obtaining in India, all persons interested may not read notification published in the Official Gazette. The owner or interested persons may in ignorance of such a public notice make an outlay or improvements on the land or dispose of the land and in such a case, the right of the owner or person interested, and may be of innocent third parties, be otherwise prejudicially affected. These are prejudicial consequences which are sought to be avoided while enforcing the powers of compulsory acquisition. The provisions of the statute conferring power on the Government to compulsorily acquire lands shall be strictly construed. In the setting in which the expression 'shall' appears, there is no reason why we should depart from the ordinary rule of construction which requires to give it its ordinary significance as being mandatory. Viewing it as such, in our opinion, the second part of Sub-section (1) Section 4 is mandatory.

7. Mr. G.M. Vidyarthi, learned Assistant Government Pleader appearing for the State, has invited our attention to the observations of Their Lordships of the Supreme Court in Vijay Cotton & Oil Mills Ltd. v. The State of Gujarat Civil Appeal No. 1948 of 1966, decided on 11th September 1968, and contended that the view taken therein is that issuance of a notification under Section 4(1) of the Act is not a condition precedent to the issuance of the declaration under Section 6 of the Act and therefore, giving of a public notice of the substance of such notification was not mandatory. Now, in the case before the Supreme Court, the owner of a land situated on the BhachuRahapar Road in Kutch District objected to the amount of compensation allowed by the award made by the Collector in respect of the land sought to be acquired. It appears that notification under Section 4(1) was not issued in the case. Nonetheless the Government took possession of the land in November 1949 and constructed thereon the State Guest House and the Court House. On February 1, 1955, the Government issued a notification under Section 6 of the Act. The further acquisition proceedings followed and the Collector made the award. At the instance of the owner of the land, a reference was made to the Court under Section 18 of the Act, which came up for hearing before the learned District Judge, Kutch, wherein the Government conceded that the appellant was entitled to the market value of the land as on February 1, 1955 and the learned Judge awarded compensation accordingly. In the appeal that was filed in this High Court, it was held that in the absence of a notification under Section 4(1), no compensation could be awarded to the appellant. It was observed that the appellant would be at liberty to contend in other proceedings that the acquisition was bad in the absence of a notification under Section 4(1). In the appeal before the Supreme Court, the main question was, whether the Government can take up inconsistent positions in Court at successive stages of the same litigation to the detriment of its opponent and whether having conceded before the District Judge that the appellant was entitled to the market value of the land on February 1, 1955, it could at the appellate stage resale from that position and contend that there was no notification under Section 4(1) on that date and that consequently its opponent was not entitled to any compensation. In the circumstances of the case, the Supreme Court took the view:

the Government cannot be permitted to resile from the election which it deliberately made and to say that the appellant is not entitled to the market value of the land on February 1, 1955. A party litigant cannot be permitted to take up inconsistent positions in Court to the detriment of his opponents see Bawa Charan Chakrabarty v. Nimai Mondal 15 C.L.J. 58 Bigelow on Estoppel, 6th Ed., page 783). He cannot approbate or reprobate (see Halsbury's Laws of England, 3rd Ed., Vol. 15, Article 340). The concession cannot now be retracted.

8. The Supreme Court was thus dealing with a different situation and the decision does J not lay down that publication of notification under Sub-Section (1) of Section 4 is not a condition precedent as is sought to be canvassed by Mr. Vidyarthi. Mr. Vidyarthi then sought to place reliance upon the observations of Their Lordships of the Supreme Court in Narendrajit Singh v. The State of U.P. and Ors. : [1978]2SCR254 wherein the Supreme Court has laid down that notification under Section 4(1) of the Act is a sine qua non and must be strictly construed and a notification which does not comply with the essential requirement of that provision of law must be held to be bad. Such a defect is held not curable by giving full particulars in the notification under Section 6(1). We do not see how this decision can be of any avail to the view sought to be canvassed by Mr. Vidyarthi.

9. In the aforesaid view of the matter which we are inclined to take, viz., that the second part of Sub-section (1) of Section 4 which provides that the Collector shall cause public notice of the substance of such notification to be given at convenient places in the said locality is mandatory, we must allow this appeal. The notification issued under Section 4 of the Act without complying with the said mandatory direction would be void and the land acquisition proceedings taken pursuant thereto would be equally void. We would accordingly declare that the proceedings for the acquisition of suit survey No. 27 (southern half) are void. A permanent injunction be issued restraining the officers of the defendants-respondents from taking possession of the said survey number from the plaintiff appellant. The plaintiff's suit is accordingly allowed with costs all throughout.

Decree accordingly.


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