LILABEHN MAHENDRA KAPADIA v. STATE — 1993 DIGILAW 546 (GUJ)

A. P. RAVANI, J. ( 1 ) RULE Mr. R. M. Chhaya learned Assistant Government Pleader waives service of rule on behalf of respondents No. 1 2 and 3 i. e. State of Gujarat Collector Surat and the Deputy Collector Choryasi Prant Surat respectively Mr. B. B. Naik learned Additional Central Government Standing Counsel waives service of rule on behalf of respondent No. 4 i. e. Union of India With the consent of and at the request of learned Counsels appearing for the parties the petition is ordered to be heard today. ( 2 ) PETITIONER claims to be a member of legal profession However the petition is in respect of land acquisition proceedings initiated by respondents Nos. 1 2 and 3 by notification under Section 4 of the Land Acquisition Act 1894 (hereinafter referred to as the Act ) dated 7/12/1989 The acquisition-proceedings started with the publication of the aforesaid notification culminated into award dated 30/12/1992 a copy of which is produced at Annexure F to the petition Petitioner has challenged the legality and validity of Section 4 notification dated 7/12/1989 and published in a daily newspaper called Gujarat Mitra dated 27/11/1989 and that of declaration under Section 6 of the Act dated 1/12/1990 and also that of the award dated 30/12/1990 Petitioner has also prayed that the respondents be directed not to give effect to the impugned award dated 30/12/1992 ( 3 ) BY notification dated 7/12/1989 issued under Section 4 of the Act the appropriate Government declared the intention of the Government to acquire different pieces of land of village Abhva and of her three surrounding villages of Taluka Choryasi District Surat These were in all 42 survey numbers admeasuring 40 acres - 14 gunthas which were to be acquired for the public purpose of expansion of Surat Ail port covered by the notification As stated at the Bar this notification affected about 117 persons The petitioner claims to have interest in land of Survey Nos. 192 193 and 197/1 of village Abhva Taluka Choryasi District Surat After the publication of the aforesaid notification the appropriate Officer submitted report under Section 5a of the Act to the State Government. The State Government considered the report and thereafter issued declaration dated 1/12/1990 under Section 6 of the Act. 192 193 and 197/1 of village Abhva Taluka Choryasi District Surat After the publication of the aforesaid notification the appropriate Officer submitted report under Section 5a of the Act to the State Government. The State Government considered the report and thereafter issued declaration dated 1/12/1990 under Section 6 of the Act. Thereafter notice dated 6/03/1991 under Section 9 of the Act was issued to the interested person as required under the provisions of Section 9 of the Act. ( 4 ) IN relation to the land in which the petitioner claims to have interest notice was given to Omkar Estate Corporation through Shri Amratlal Lallubhai Desai The said Amratlal Lallubhai Desai has replied to the notice on 16/10/1991 inter alia stating therein that the land of Survey Nos. 192 193 197 of village Abhva was originally owned by Omkar Estate Corporation which was a partner ship firm. The said partnership firm was constituted on 23/12/1965 It was dissolved on 8/04/1969 As stated in the reply even a copy of the dissolution deed dated 8/04/1969 was sent to the Deputy Collector Choryasi Prant. As stated in the reply the land was permitted to be converted into non-agricultural use and different plots had gone to the shares of different individuals. The details with regard to the different plots having gone to the share of different individuals has also been mentioned in the reply Despite this reply no individual notice was given to the petitioner. The Special Land Acquisition Officer passed award dated 30/12/1992 copy of which is produced at Annexure F to the petition According to the petitioner she is staying at Ahmedabad as her husband is a practising lawyer in High Court She came to know about the aforesaid award when she received letter dated 24/02/1993 from Mr. Amratlal Lallubhai Desai After coming to know about the award having been passed she has filed this petition on 15/07/1993 and has played for the reliefs as stated hereinabove. The petitioner contends that as provided under sub-sections (3) and (4) of Section 9 of the Act the Collector is under an obligation to serve notice to the occupied of the land and to all such persons known or believed to be interested in the land or to be entitled to act for persons so interested. The petitioner contends that as provided under sub-sections (3) and (4) of Section 9 of the Act the Collector is under an obligation to serve notice to the occupied of the land and to all such persons known or believed to be interested in the land or to be entitled to act for persons so interested. It is submitted that even as per the revenue reports the petition is an occupier of following plots Plots Nos. 1 2 3 4 9 10 12 13 22 23 27 28 29 31 33 44 45 46 47 48 49 50 52 53 54 87 93 94 95 96 97 98 99 and 100 In para 2 of the petition the aforesaid numbers have been mentioned and it is also mentioned that the total number of plots are 41 However this appears to be a mistake. The learned Counsel for the petitioner submits that the correct position is to be found from reply dated 16/10/1991 which is produced at Annexure K to the petition From the aforesaid reply it can be culled out that originally 14 plots being plots Nos. 1 2 3 4 9 10 12 13 22 23 27 28 29 and 31 had gone to the share to the petitioner. Thereafter other 14 plots which had fallen in the share of Lallubhai Chandulal Shah and 13 plots which had fallen to the share of Sarlabehn Lallubhai had also come to the share of the petitioner as the aforesaid two persons namely Lalitabehn Chandulal Shah and Sarlabehn Lallubhai relinquished their shales in favour of the petitioner. ( 5 ) THE numbers of 14 plots which Originally belonged to Lalitabehn Chandulal Shah and which were relinquished in favour of the petitioner are as follows plots Nos. 33 44 45 46 47 48 49 50 52 53 54 55 56 and 59 the numbers of 13 plots which originally belonged to Sarlabehn Lallubhai and which on relinquishment came to the share of the petitioner are as follows: Plots Nos. 87 93 94 95 96 9 98 99 100 102 103 104 and 105. Thus the petitioner claims to be the exclusive owner of the aforesaid plots which originally formed part of the land of Survey Nos. 192 193 and 197/1 of village Abhva Taluka Choryasi District Surat. 87 93 94 95 96 9 98 99 100 102 103 104 and 105. Thus the petitioner claims to be the exclusive owner of the aforesaid plots which originally formed part of the land of Survey Nos. 192 193 and 197/1 of village Abhva Taluka Choryasi District Surat. ( 6 ) SINCE no notice has been given to the petitioner as required under sub-sections (3) and (4) of Section 9 of the Act it is contended that the impugned award dated 30/12/1992 is bad in law an not binding to the petitioner. It is further contended that the expansion of Surat Aerodrome would be a function covered by Entry No. 29 of List of Schedule 7 of the Constitution of India. Therefore in respect if this purpose the appropriate Government as defined under Section 3 of the Act would be the Central Government and not the State Government of Gujarat. In view of this petition the notification issued by the State Government of Gujarat and further action taken by the officer appointed by the State Government of Gujarat are illegal and void. It is contended that the Central Government has no financial resources available for incurring expenditure for the expansion of Surat Aerodrome and therefore there is no need and hence there is no public purpose. As another aspect of this point it is also and that expansion of aerodrome is different from expansion of airstrip and mind. Therefore also it cannot be said that there is public purpose and that there is application of mind with regard to this count also the proceedings should be quashed and set aside. It is submitted that the notification under Section 4 of the Act has been issued by Collector Surat while the declaration under Section 6 of the Act has been made by the State Government of Gujarat. Thus two different authorities have taken action and on this score also it is sought to be argued that the acquisition proceedings are not in accordance with the law and they are required in be quashed and set aside. It is also contended that the award dated 30/12/1992 is passed beyond the period of two years from the date of publication of Section 6 notification and therefore also the impugned award is bad in law. It is also contended that the award dated 30/12/1992 is passed beyond the period of two years from the date of publication of Section 6 notification and therefore also the impugned award is bad in law. ( 7 ) AFTER making submissions on the aforesaid points the learned Counsel for the petitioner fairly conceded that except the first point which pertains to the absence of notice to the petitioner under Section 9 of the Act the petitioner does not press any other point. In view of this concession made by the learned Counsel for the petitioner all the aforesaid points except the one with regard to the absence of notice under Section 9 of the Act and the consequences thereof are rejected as having not been pressed. ( 8 ) THIS brings us to the only point pressed in this petition. It is contended by the learned Counsel for the respondents Nos. 1 2 and 3 and in the revenue record the name of Omkar Estate Corporation still continues as the occupier and owner of the land in question. It is also submitted that even the amount of N. A. assessment for the year 1992-1993 has been paid in the name of Omkar Estate Corporation by said Shri Amratlal Lallubhai Desai. In the revenue record there is no separate entry of the name of the petitioner. Therefore it is submitted that there was no obligation on the part of the respondents to serve separate notice to the petitioner as required under sub-sections (3) and (4) of Section 9 of the Act. ( 9 ) HOWEVER the contention of the respondents that the petitioner was not person interested in the land and was not required to be served under sub-sections (3) and (4) of Section 9 of the Act cannot be believed. This is so because by reply dated 16/10/1991 produced at Annexure K to the petition Shri Amratlal Lallubhai Desai who was formerly acting for and on behalf of the firm of Omkar Estate Corporation had replied to the Deputy Collector Choryasi Prant Surat giving all the details as regards the original ownership of the land by the firm of which petitioner was a partner. The reply contains the details with regard to the dissolution of the firm and further details with regard to the individual share of the partners concerned showing the number of plots which had fallen to the share of different individuals. Therein specific details have been given as regards the plots which had fallen to the share of the petitioner. This part of the reply has been narrated hereinabove. Be it noted that the aforesaid reply was given by Shri Amratlal Lallubhai Desai in response to the notice issued by the Assistant Collector on 16/09/1991 copy of which is produced at Annexure J to the notice of Thus it was brought to the notice of the appropriate Officer that the petitioner had become absolute owner of the land in question. It may be that the necessary mutation entry may not have been made in the revenue records but that would not absolve the appropriate officer-respondent No. 2-from issuing notice as required under sub-sections (3) and (4) of Section 9 of the Act when it was specifically brought to his notice that petitioner had become the absolute owner of the several plots numbers of which have been mentioned in the aforesaid reply dated 16/10/1991 In view of this factual position it has got to be held that no notice as required under sub-sections (3) and (4) of Section 9 of the Act has been served on the petitioner. ( 10 ) IN view of the aforesaid factual position we now examine the position of law as laid down by this Court. In a Division Bench judgment in the case A Mohamadsarif Hakimji Chippa and Another v. State of Gujarat and Another recorded in AIR 1967 Gujarat 259 similar question arose. Therein the tenants of the premises which were under acquisition were not served with notice under sub-section (3) of Section 9 of the judgment has observed as follows: It is settled law that notice under sub-section (3) of Section 9 is mandatory to be given to the occupants and failure to give notice would render the award not binding on them. No notice was served admittedly on the present petitioners by the Special Land Acquisition Officer. The first award dated 3rd if April 1961 therefore is invalid in law. No notice was served admittedly on the present petitioners by the Special Land Acquisition Officer. The first award dated 3rd if April 1961 therefore is invalid in law. Thereafter the Division Bench has referred to a decision of the Bombay High Court in the case of Laxmanrao Kristrao Jahagirdar v. Provincial Govt. of Bombay reported in AIR 1950 Bombay 332. After referring to the aforesaid decision the Division Bench has further observed as follows: There can be be no quarrel with the principle laid down that under sub-section (3) of Section 9 the giving of notice by the Collector to the occupant is mandatory and it is a condition precedent to be fulfilled to make the award binding on them. Thereafter in the same paragraph it is further observed that as there was no notice under Section 9 served upon the petitioners therein the award and all the proceedings that followed upto the giving of notice to the petitioners under Section 9 were not binding in law on them However the Division Bench has made the further position clear as follows It is also clear that so for as the proceedings I hat preceded the acquirement of giving of such notice under Section 9 would not be touched and therefore the publication of the notification under Section 4 and Section 6 of the Land Acquisition Act would stand as valid acts on the part of the Collector In view of the aforesaid law laid down by the Division Bench of this Court it has got to be held that the award dated 30/12/1992 produced at Annexure F to the petition is not binding on the petitioner. ( 11 ) THE learned Counsel for the petitioner submitted that Section 11-A of the Act which has been inserted to the Act by Act 69 of 1984 would come in operation in the instant case Section 11-A of the Act reads as follows:a Period within which an award shall be made - The Collector shall make an award under Section 11 within a period of two years from the date of the publication of the declaration and if no award is made within that period the entire proceedings for the acquisition of the land shall lapseprovided that in a case where the said declaration has been published before the commencement of the Land Acquisition (Amendment) Act 1894 the award shall be made within a period of two years from such commencementexplanation- In computing the period of two years referred to in this section the period during which any action or proceeding too be taken in pursuance of the said declaration is stayed by an order of a court shall be excluded. On the basis of the aforesaid provisions of the Act it is submitted that once the Court comes to the conclusion that award dated Dec 30/12/1992 passed under Section 11 of the Act is not binding on the petitioner it has got to be held that there is no award as far as the petitioner is concerned. Therefore it is submitted that the entire proceedings for the acquisition of the land in question should be held to have lapsed As against this contention learned Counsel for the respondents Nos. 1 2 and 3 submits that in the instent case there is an award passed under Section 11 of the Act At the most in view of the defect as regards non-issuance of notice under Section 9 of the Act to the petitioner the award can be said to be defective qua the petitioner and qua the land of which the petitioner is the occupier. In his submission the entire acquisition proceedings cannot be said to have lapsed hence it is submitted that all that would be necessary for the Government would be to proceed further in accordance with from the stage of Section 9 of the Act ( 12 ) THE aforesaid contention based on the provisions of Section 11-A of the Act does not directly arise at this stage in this petition At this stage all that we are required to decide is as to whether the award passed under Section 11 of the Act is binding upon the petitioner or not As indicated hereinabove in view of the law laid down by the Division Bench of this Court in the case of Mohamadsarif (supra) the award dated 30/12/1992 passed for respondent No. 3 cannot be said to be binding on the petitioner However the question as to whether the entire proceedings for the acquisition of the land in question stands lapsed or not is not decided in this petition. It will be open for the State Government to take further action in the matter in accordance with law If the petitioner feels aggrieved by any filthier action that may be taken by the State Government it would be open to the petitioner to challenge the legality and validity of such action In that eventuality it will be open to State Government also to raise all the contentions of law and facts as the same may be available to it ( 13 ) IN the result the petition is partly allowed Award dated 30/12/1992 produced at Annexure F to the petition in so far as it relates to the petitioner and the land of which the petitioner is the occupier and/or person interested therein is no binding on the petitioner As clarified in the body of the judgment it will be open to the Government to proceed further in accordance with law and it will also be open to the petitioner to raise all the contentions that may be available to her against the action that may be taken by the Government hereinafter in respect of the acquisition-proceedings of the land in question Rule made absolute to the aforesaid extent only. Petition partly allowed. .