MALI KODARBHAI MOTIBHAI v. STATE — 1971 DIGILAW 12 (GUJ)

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-sec. (1) of sec. 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 sec. 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 sec. 3a in new Part I-A of the Act as inserted by sec. 2 of the Land Acquisition (Bombay Amendment) Act 1945 (Act 20 of 1945 ). The notification published also invoked the urgency clause under sec. 17 (4) of the Act and stated that the Government of Bombay was further pleased to direct under sub-sec. (4) of sec. 17 of the Act that as the acquisition of the said land was urgently necessary the provisions of sec. 5a of the Act shall not apply in respect of the said land. 17 (4) of the Act and stated that the Government of Bombay was further pleased to direct under sub-sec. (4) of sec. 17 of the Act that as the acquisition of the said land was urgently necessary the provisions of sec. 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-sec. (1) of sec. 4 of the Act was not given. The declaration under sec. 6 was thereafter made on November 19 1951 and it was published in the Bombay Government Gazette dated November 22 1951 Sec. 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 thereafter 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 sec. 4 (1) of the Act were not complied with and therefore the award was unenforceable. 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 sec. 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 or the public notice of the substance of the notification published under the first part of sub-sec. (1) of sec. 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 fee Supreme Court in Khub Chand and others v. State of Rajasthan and others A. I. R. 1967 S. C. 1074 wherein Subba Rao C. J. speaking for the Supreme Court while dealing with a case under the Rajasthan Land Acquisition Act (24 of 1953) secs. 4 (1) 4 and 5 (2) observed that the provision of notice contemplated by sec. 4 (1) of the Rajasthan Act is mandatory Relying upon this decision Mr. Vyas has contended that sec. 4 (1) of Act I of 1894 (the Act) is in pari materia with sec. 4 (1) 4 and 5 (2) observed that the provision of notice contemplated by sec. 4 (1) of the Rajasthan Act is mandatory Relying upon this decision Mr. Vyas has contended that sec. 4 (1) of Act I of 1894 (the Act) is in pari materia with sec. 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 sec. 4 void and the land acquisition proceedings taken pursuant thereto equally void. Now it is true that sec. 4 (1) of the Rajasthan Act is in pari materia with sec. 4 (1) of the Act. It provides for publication of preliminary notification and powers of officers thereupon and reads:-SEC. 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. Sec. 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-sec. (2) of sec. 4 of the Rajasthan Act is also in pari materia with sub-sec. (2) of sec. 4 of the Act and reads:-SEC. 4. Sub-sec. (2) of sec. 4 of the Rajasthan Act is also in pari materia with sub-sec. (2) of sec. 4 of the Act and reads:-SEC. 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. Sec. 5 of the Rajasthan Act provides for report by Collector and publication of a further notification and giving of public notice and reads:-SEC. 5. Report by Collector. (1) The Collector or a Revenue Officer specially empowered by the Government in this behalf shall forward do the Government with his remarks a report on the result of the survey if any and other operations described in and taken under sub-sec. (2) of sec. 4. (2) After considering the report if any submitted under sub-sec. (1) or if no such report has been received at any time after the issue of the notification under sub-sec. (1) of sec. 4 the Government shall publish a further notification in the Rajasthan Gazette giving sufficient description of the land already notified under the said sub-sec. (1) of sec. 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 sec. 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 sec. 5a of the Rajasthan Act which is in pari materia with sec. 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-sec. (1) of sec. 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-sec. (2) of sec. 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 thereunder. The Legislature thought that it was absolutely necessary that before such officer can enter the land of another the owner thereof should have a clear notice of the intended entry. The fact that the owner may have notice of the particulars of the intended acquisition under sec. 5 (2) does not serve the purpose of sec 4 for such a notice shall be given after the appropriate officer or officers enter the land and submit the particulars mentioned in sec. 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 enter 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 sec. 4 (2) of the Act leads to the same conclusion. It says thereupon it shall be lawful for any officer generally or specially authorised by the Government in this behalf and for his servants and workmen to enter upon and survey and take levels of any land in such locality. . . . . The expressions thereupon and shall be lawful indicate that unless such a public notice is given the officer or his servants cannot enter the land. . . . . The expressions thereupon and shall be lawful indicate that unless such a public notice is given the officer or his servants cannot enter the land. It is a necessary condition for the exercise of the power of entry - The non-compliance with the said condition makes the entry of the officer or his servants unlawful. On the express terms of sub-sec. (2) the officer or his servants can eater 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 sec. 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 sec. 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-sec. (1) of sec. 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-sec. (2) of sec. 4 of the Rajasthan Act. But in the Act as applied to Gujarat a provision similar to sub-sec. (2) of sec. 4 of the Rajasthan Act and also the Central Act is inserted as sec. 3a by sec. 2 of the Land Acquisition (Bombay Amendment) Act 1945 (Act XX of 1945) at a stage prior to sec. 4 of the Act and provides for a preliminary survey before the publication of preliminary notification under sec. 4 of the Act. Sec. 2 of the Land Acquisition (Bombay Amendment) Act 1945 (Act XX of 1945) has inserted Part I-A containing secs. 3a and 3b which respectively provide for a preliminary survey and payment of damages. 4 of the Act and provides for a preliminary survey before the publication of preliminary notification under sec. 4 of the Act. Sec. 2 of the Land Acquisition (Bombay Amendment) Act 1945 (Act XX of 1945) has inserted Part I-A containing secs. 3a and 3b which respectively provide for a preliminary survey and payment of damages. Sec. 3a of the Act reads:- 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-sec. 3b as inserted by the Bombay Amendment Act 1945 provides for payment of damages and reads:-3 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 sec. 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 sec. The aforesaid newly inserted sec. 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 sec. 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 sec. 4 of our Act has been made. Sec. 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 sec. 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 Government 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 sec. 4 (1) of the Act and to the giving of the public notice under the second part of sub-sec. (1) of sec. 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 sec. 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 sec. 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 expressions thereupon and shall be lawful occurring in sec. 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 sec. 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-sec. (2) of sec. 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-sec. (1) of sec. 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. Sec. 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 considerationsnow as aforesaid sub-sec. (1) of sec. 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 considerationsnow as aforesaid sub-sec. (1) of sec. 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-sec. (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 subsec. (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-sec. (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 subsec. (1) of sec. 4 of the Act. The relevant words used in the second part of sub-sec. (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 pro vision is mandatory. The relevant words used in the second part of sub-sec. (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 pro vision is mandatory. Such a public notice is far different from a notice to individuals under sec. 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 sec. 6 of the Act is made. Sec. 23 of the Act lays down the matters which shall be considered by the Court in deter mining 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 sec. 4. Clauses Firstly to Seventhly of sec. 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. Sec. 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 sec. 4 sub-sec. (1 ). Costs of improvements incurred after publication of notification under sec. 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. 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-sec. (1) of sec. 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 Helens 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 cannot 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-sec. (1) of sec. 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. (1) of sec. 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. secs. 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-sec. (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-sec. (1) of sec. 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 sec. 24 of the Act has observed:-IT is true that sub-clause 7 of sec. 24 does say that if these things are done after the notification is published under sec. 4 (1) then the consequences mentioned therein shall follow. But as pointed out the stress i on the publication of the notification Apart from that the other important thing to notice i that this only affects the right to receive compensation. It toes not go to the root of the right of fee owner ship of the land or such other interest in the land. . . . . . . . . With respect this is not wholly true. It toes not go to the root of the right of fee owner ship 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-sec. (1) of sec. 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-sec. (4) of sec. 17 of the Act is invoked at the time of publication of the preliminary notification under sub-sec. (1) of sec. 4 and although sec. 6 declaration is made within a reasonable time sec. 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 an 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 subsec. (1) sec. 4 is mandatory. ( 7 ) MR. In the setting in which the expression shall appears there is an 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 subsec. (1) sec. 4 is mandatory. ( 7 ) MR. G. M. Vidhyarthi learned Assistant Government Pleader appearing for the State has invited our attention to the observations of Their Lordships of the Supreme Court in M/s. Vijay Cotton and Oil Mi11s Ltd. v. The State of Gujarat Civil Appeal No. 1948 of 1966 decided on 11 September 1968 and contended that the view taken therein is that issuance of a notification under sec. 4 (1) of the Act is not a condition precedent to the issuance of the declaration under sec. 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 Bhachu-Rahapar 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 sec. 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 sec. 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 sec. 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 sec. 4 (1) no compensation could be awarded to the appellant. It was observed the appellant would be at liberty to contend in other proceedings that the acquisition was bad in the absence of a notification under sec. 4 (1 ). 4 (1) no compensation could be awarded to the appellant. It was observed the appellant would be at liberty to contend in other proceedings that the acquisition was bad in the absence of a notification under sec. 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 resile from that position and contend that there was no notification under sec. 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 Chakravarti v. Nimai Mondal. 15 C. L. J. 58 Bigelow on Estoppel 6 Ed. page 783 ). cannot approbate or reprobate (see Halsburys Laws of England 3 Ed. Vol. 15 art. 340 ). The concession cannot now be retracted. . The Supreme Court was thus dealing with a different situation and the decision does not lay down that publication of notification under sub sec. (1) of sec. 4 is not a condition precedent is sought to be canvassed by Mr. Vidhyarthi. Mr. Vidhyarthi than sought to place reliance upon the observations of Their Lordships of the Supreme Court in Narendrajit Singh v. The state of U. P. and others A. I. R 1971 S. C. 306 wherein the Supreme Court has laid down that notification under sec. 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 sec. 6 (1 ). 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 sec. 6 (1 ). We do not see how this decision can be of any avail to the view sought to be canvassed by Mr. Vidhyarthi. ( 8 ) IN the aforesaid view of the matter which we are inclined to take viz. that the second part of sub-sec. (1) of sec. 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 sec. 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 plaintiffs suit is accordingly allowed with costs all throughout. Decree accordingly. Appeal allowed. .