S. Nainar Sundaram, J.
1. The petitioners challenge the notification under Section 4(1), the declaration under Section 6 and the award passed under the Land Acquisition Act (Central Act I of 1894), hereinafter referred to as the Act. The lands in question were held by one Rangasami Gounder and the petitioner in W.P. No. 5559 of 1979. The said Rangasami Gounder died even on 15th December, 1975. The first petitioner in W.P. No. 5558 of 1979, is the daughter and the second petitioner is the grandson of the said Rangasami Gounder, through the first petitioner. The notification under Section 4(1) of the Act was published on 10th January, 1979. Records produced disclose that the public notice of the substance of such notification was given in the locality as enjoined by the later part of Section 4(1) of the Act, read with rule 1 of the State Rules. No objection was received at the instance of the petitioners pursuant to such notification. The declaration under section 6 of the Act was published on 12th March, 1979. Notices under Sections 9(3) and 10 of the Act are stated to have been served by affixture.
2. Mr. K. Doraisami, learned Counsel appearing for the petitioners, submits that the petitioners were not at all aware of the acquisition proceedings until they received notices from the civil Court, obviously on a reference under Section 31 of the Act. Learned Counsel further submits that the petitioners were not served with notices either under Sections 9(3) and 10 of the Act or under section 12(2) of of the Act, since the petitioners admittedly did not participate in the award enquiry. I have perused the records. There are papers relating to service of notices under Sections 9 (3) and 10 of the Act. There is no paper relating to service of notice under Section 12(2) of the Act. Hence, it has to be taken that no notice was served under Section 12(2) of the Act. Coming to service of notices under Sections 9(3) and 10 of the Act with reference to the deceased Rangasami Gounder, the predecessor-in-title of the petitioners in W.P. No. 5558 of 1979, the endorsement states that the said Rangasami Gounder is residing elsewhere. This is a callous incorrect endorsement. Such a statement does not bear out the factum of any proper enquiry having been made as enjoined by Section 45 of the Act. There is no dispute that the said Rangasami Gounder passed away even on 15th December, 1975. It is not stated in the endorsement, that attempt was made to serve the notice under Sections 9(3) and 10 of the Act on either of the petitioners in W.P. No. 5558 of 1979, or that they could not be found or any adult male member in the family also could not be found and hence it became necessary to serve the notice by affixture as contemplated under Section 45(3) of the Act. Even here, the endorsement reads that the notice was affixed on the survey stone and not on the outer door of the house concerned. In the counter affidavit filed on behalf of the respondents, it is stated that heirs of the landowner refused to receive the notices under Sections 9(3) and 10 of the Act. This runs diametrically opposite to the above endorsement found among the papers with regard to service of such notices, and practically shakes the confidence of this Court with regard to the veracity of the version of the respondents over the question of service of the statutory notices. The records disclose a similar position with reference to the alleged service of notice under Sections 9(3) and 10 of the Act on either of the petitioners in W.P. No. 5558 of 1979, or that they could not be found or any adult male member in the family also could not be found and hence it became necessary to serve the notice by affixture as contemplated under Section 45(3) of the Act. It is stated in the relevant endorsement that the petitioner in W.P. No. 5559 of 1979 was residing in some other village and it is further stated in the said endorsement that he refused to receive the notice. Both these statements are irreconcilable. If the petitioner in W.P. No. 5559 of 1979 was residing elsewhere and could not be found, as alleged, there could be no question of refusal of notice by him. If he could not be found, then, attempt ought to have been made to serve the notice on any adult male member of his family as enjoined by Sub-section (3) of Section 45 of the Act. Admittedly, that was not done. The endorsements do not bring conviction to the mind of this Court that notices under Sections 9(3) and 10 of the Act were served on the petitioners and a farce of service of notices has been adopted in the instant case. Those factors oblige me to hold that there was total lack of notices under Sections 9(3) and 10 of the Act. As stated above, there is no record produced to prove service of notices under Section 12(2) of the Act which cannot be skipped over since, admittedly the petitioners did not participate in the award enquiry. In the said circumstances, the petitioners must be deemed to have, been put to prejudice on account of the failure on the part of the authorities to serve the statutory notices on the petitioners. It is not stated on behalf of the respondents that the petitioners are persons not interested in the lands concerned and not occupiers of such lands.
3. With regard to want of notice of the notification under Section 4(1) of the Act, it is well-settled that no individual notice need be served on the persons interested in the land at that stage. The contingency for service of notice under Section 5-A(2) of the Act arose, because, admittedly, the petitioners did not present objections. Apart from publication in the official Gazette of the declaration under Section 6 of the Act, no individual notice to the persons interested in the land is contemplated in respect of much declaration. However, Mr. K. Doraisami, learned Counsel for the petitioners, submits that the award No. 20 of 1979, dated 29th March, 1979, passed in the instant case stands vitiated because there is a total lack of jurisdiction for the award enquiry under Sections 9 (3) and 10 of the Act and equally no notices of the making of the award under section 12(2) of the Act have been served. Learned Counsel for the petitioners submits that the records in this case disclose that there has been a wilful and a perverse failure to serve the statutory notices on the petitioners, who are not only persons interested in the lands but also occupiers thereof and on this ground the proceedings upto the stage of Section 9 of the Act alone could be preserved, and in this view the award passed in this case is liable to be quashed.
4. To assess the above submission of the learned Counsel for the petitioners, it has become necessary to refer to some of the judicial pronouncements in this regard. In Gangaram Marwari v. Secretary of State for India (1903) I.L.R. 30 Cal. 576, a Division Bench of the Calcutta High Court, which was concerned with the provisions of the Land Acquisition Act (X of 1870), opined as follows:
Where it is known or believed that a person is interested and yet the Collector wilfully and perversely refuses to give him notice, then his proceedings cannot be considered bona fide and should be held to be colourable and therefore inoperative in vesting the land in the Government, as was held in the somewhat analogous case of Luchmeswar Singh v. Chairman of the Darbhanga Municipality ILR(1890) Cal. 99.
5. In Kasturi Pillai v. Municipal Council, Erode ILR(1920) Mad. 280 : 37 M.I.J. 618 : 10 L.W. 331, the contention put forth before the Division Bench was that if a notice on the occupier was not served in accordance with Sections 9(3) and 45 of the Act, the subsequent proceedings and the award are void. There, it was found that the party had notice of the award under Section 12 of the Act and his remedy was, therefore, to apply for a reference under Section 18 of the Act and in that view the Division Bench declined to hold that the award could be treated as void in a suit for ejectment.
6. In Laxmanrao v. Government of Bombay : AIR1950Bom334 , a Division Bench of the Bombay High Court consisting of Chagla, C.J. and Gajendragadkar, J., as he then was, observed as follows:
It will be noticed that an obligation is cast upon the Collector to serve a notice on every occupier of the land which is to be acquired. There is also an obligation cast upon him to serve a notice on persons who are known to him to be interested in the land and whom he believes to be interested in the land. Therefore the Legislature has made a clear distinction between occupiers of the land and persons who are interested in the land. As far as occupiers are concerned, the Collector must serve a notice upon the occupier. As far as persons interested are concerned, the obligation in cast upon him only if he knows of such persons or believes that there are such persons. With regard to the first class the obligation is absolute; with regard to the second class the obligation is not absolute but is relative and it only arises provided the Collector has knowledge or belief with regard to the existence of the second class of persons. Therefore it is clear that a person who has not been served with a notice under Section 9(3) and who is interested in the land to he acquired can only have a grievance provided he satisfies the Court that the Collector wilfully or fraudulently or perversely omitted to serve the notice con templated by Section 9(3).
Chagla, C.J., delivering the judgment of the Bench, referred to the decision of this Court in Kasturi Pillai v. Municipal Council, Erode ILR(1920) Mad. 280 : 37 M.L.J. 618, and rightly pointed out that the said judgment of this Court cannot be read to imply or to suggest that even an occupier would be bound by an award in respect of which no notice was given to him under Section 9(3) and where he had no knowledge of the acquisition proceedings.
7. Ramamurti, J., in Tuticorih Municipal Council v. Arunagiri ILR(1966) Mad. 336, countenanced the proposition that failure to issue notice under Section 9 could not invalidate or render nugatory the validity of the proceedings up to the stage of the declaration made under Section 6; the failure to give notice under Section 9 could only have the effect of preserving the rights of the party from that stage; rights and advantages or benefits which would accrue to a party; if a notice under Section 9 had gone to him such rights would not be affected and he would he clearly bound by the consequences of the proceedings up to the stage of Section 9.
8. The following observations of Sambasiva Rao, J., in V.K. Durga v. District Collector : AIR1971AP310 , are really elucidative:
Reading Sections 9 and 10 and also noticing the context in which they occur, it is clear to my mind that the requirement of Sub-section (3) is a mandatory one.... It is thus clear that the Act accords great importance to the service of notice on the persons in occupation of the land so that all available information in respect of such land could be secured during the course of the enquiry. It may be difficult to learn about all the persons interested in such land but it is not so to know the person or persons in actual occupation of such land. A person in occupation can reasonably he supposed to have all the necessary particulars about the property of which he is in possession. That is why Sub-section (3) clearly insists upon the service of a notice on the occupier of land and Section 10(1) empowers the Collector to require any such person to make or deliver to him a statement containing particulars relating to the land and the persons interested therein. It is obviously the surest way of gathering the necessary information about the land. The notice contemplated by Sub-section (1) of Section 9 is intended to give intimation to all persons interested and that is required to be published in or near the land to be taken, because it is, in several cases, difficult to know all the persons interested. The case of the occupier of the land is, however, obviously different, because his occupation is certain. It is for that reason the word 'shall' is used in Sub-section (3) making it obligatory on the part of the Collector to serve notice on the occupier. Once a person is required to make a statement either under Section 9 or under section 10, he is deemed to be legally bound to do so as per the provisions of Section 10(2). Therefore, there cannot be any doubt that Section 9(3) is a mandatory provision and the notice provided thereunder is an integral and essential part of the land acquisition proceeding.
* * * * *It is however, urged that this lack of notices did not really prejudice the petitioner for the reason that she did, in fact, appear before the Land Acquisition Officer on 14th October, 1968, and file her objections. This attempt to salvage the proceedings is futile because Section 9(3), as I have already, held, is a mandatory provision. Strict compliance with such a provision is expected and insisted upon by the statute. Failure to do so would vitiate the subsequent proceedings. The question of prejudice does not arise in cases of failure to comply with the mandatory provisions of law.
Ultimately, the learned Judge quashed the proceedings, including the award passed under the Act, on the ground of failure to give a valid notice under Sections 9(3) and 10 of the Act.
9. In Mani Ram v. State , D. B. Tewatia, J., while holding that the service of notice under Section 9(3) is mandatory and failure to comply therewith will render the subsequent proceedings illegal and invalid, referred to a judgment of a Division Bench of the Patna High Court in Shivdev Singh v. State of Bihar : AIR1963Pat201 , and declined to follow the ratio expressed therein, and the reasoning advanced by the learned Judge of the High Court of Punjab and Haryana runs as follows:
In Shivdev Singh's case : AIR1963Pat201 , if I may any with respect, Untwalia, J., seems to be concerned with failure of service of notice which merely affected the party concerned in regard to its right of submitting claim of compensation to the Collector and further to the District Judge if dissatisfied with the award of the Collector; and it appears to have been assumed that as a result of non-compliance of the provisions of Section 9(3) of the Act, prejudice would be caused to the person concerned. I am afraid such an assumption is incorrect when regard is had to the fact that if the person concerned had been served with the requisite notice, he might have taken the necessary step of submitting his claim to the Collector and for ought we know the Collector would have accepted his estimation. of the valuation of the land, and he in return might well have been satisfied with the award of the Collector and thus would have left the matter at that stage, hut on the contrary in the eventuality of the failure of compliance with the provisions of notice under Section 9, such a party would have no opportunity to make its claim to compensation known to the Collector and the Collector would, on his own give the award which may not measure upto the expectation of the party concerned. In that case the said party would perforce have to initiate proceedings under section 18 of the Act in the Court of the District Judge and expend money and energy in claiming what he, if he had notice, would otherwise have claimed before the Collector and may well have been awarded by the Collector. Hence prejudice to such a party is obvious in the event of the failure of the Collector to serve upon him the requisite notice under Section 9 of the Act.
The above reasoning appeals to me convincingly and I feel inclined to agree with the same.
10. Coming to the provisions of the Act, a bare reading of Section 9 of the Act leaves no room for doubt that causing of public notice under Sub-section (1) and the service of notice on the persons concerned under Sub-section (3) are mandatory. The expression used in the sub-section is 'shall' and not 'may'. In contrast, in section 10 of the Act, which contemplates the Collector requiring statements as to names and interests, the expression used is 'may'. But normally the notices under Sections 9(3) and 10 are clubbed together in a single common form. But the significance of the mandatory nature of the provision of Section 9(3) cannot be lost sight of. It is true that the obligations pursuant to the notice under Section 9(3) could be only with reference to the nature of the interests in the land, the amount and particulars of claims to compensation for such interests and the objections to measurements made under Section 8. Section 11 contemplates enquiry by the Collector into these objections, if made pursuant to a notice given under Section 9, and the making of an award after such enquiry covering the said aspects. Section 12(1) speaks about the filing of the award in the Collector's office and the award becoming final and conclusive with regard to the true area and value of the land and the apportionment of the compensation among the persons interested. Section 16 empowers the Collector to take posession of the land on the making of an award, and it further states that the land shall thereupon vest absolutely in the Government, free from all encumbrances. Section 18 speaks about reference to Court at the instance of a person who has not accepted the award, the scope of the reference and the limitations for making an application for reference. Section 25 lays down the rules as to amount of compensation and circumscribes the power of the Court with regard to the quantum of compensation depending on the fact as to whether a claim to compensation was made or not pursuant to a notice under Section 9. These provisions bring out the significance of service of notice under Section 9 and affording the requisite opportunity to the persons interested in and the occupiers of the land to state their objections on the aspects specified. The failure to state the objections in spite of notice under Section 9 will lead to adverse consequences so far as such persons are concerned. It would be iniquitous and inappropriate to state that the provisions of Section 9 regarding service of notice can be breached in practice and the grievance of the persons concerned can still be ameliorated in a reference to the Court without applying the limitations under Section 25. This cannot bring solace to the person concerned. He is entitled to have a notice served on him under Section 9(3) and make his objections pursuant thereto, and should have the opportunity of persuading the Collector to accept his objections and pass an award beneficial to him. In such a case, the contingency of driving the person to seek a reference to the Court, which contingency will arise only if the award is not acceptable to the person, can as well be legitimately thwarted and the person will save the finance, time and energy involved in Court proceedings.
11. On a proper analysis of the provisions of the Act and the case law on the subject, it is not possible to lay down as a general proposition that an award passed under Section 11 can never be vitiated on account of non-service of notice under Section 9. There may be cases where non-service of notice on the person interested in the land or in occupation thereof is due to the fact of bona fide lack of knowledge of such person. In such cases, non-service of notice under Section 9 cannot by itself vitiate the subsequent proceedings and the award. But, where the occupier of the land is known and the person interested in the land can also be known, yet, the Collector perversely or wilfully or fraudulently omits to serve the statutory notice, on the person concerned, the proceedings which follow and culminate in an award can be characterised as absolutely lacking in bona fides, and inoperative and ineffective in the eye of law.
12. In the instant case, the petitioners are persons not only interested in the land but also occupiers thereof. The records disclose that the authority concerned had no regard for the provisions of the Act will reference to the service of the statutory notices. As stated above, it is not pleaded that the authority concerned was not aware that the petitioners are persons interested in the land as well as occupiers thereof. In the said circumstances, it has to be held that there was a wilful and perverse failure to serve the statutory notices on the petitioners and the proceedings cannot be characterised as bona fide. As observed by the Division Bench of the Calcutta High Court in Gangaram Marwari v. Secretary of State for India ILR(1903) Cal. 576, the proceedings must be held to be colourable and, therefore, inoperative.
13. The above legal position compels me to interfere in writ proceedings, on the facts of this case, to quash the award made in this case so far as the petitioners are concerned. Accordingly, these writ petitions are allowed and the Award No. 20 of 1979, dated 29th March, 1979, on the file of the second respondent, in so far as it relates to the petitioners, will stand quashed. There will be no order as to costs in these writ petitions.
14. However, it will be open to the second respondent to prosecute the acquisition proceedings under the Act after issuing and serving the statutory notices under Sections 9 and 10 of the Act.