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1995 DIGILAW 420 (GUJ)

KANTIBHAI NATHABHAI PATEL v. STATE

1995-09-21

B.C.PATEL, H.R.SHELAT

body1995
B. C. PATEL, J. ( 1 ) PETITIONERS have filed this petition under Art. 23,6- of the constitution of India praying for issuance of a writ, order or direction quashing and setting aside Annexure "c", a notification published in gazette on 9/10/1980 under provisions :contained in the Land Acquisition Act, 1894 (thereinafter referred to as the Act), being notification No. AM-80-937-7-LKI-1477-106-2377- kh, notifying some lands as specified in the Schedule, needed for public purpose. ( 2 ) THIS Court, while issuing notice in this petition on 3-7-198 1, by an adinterim, relief, restrained, the+ respondents from making the award for taking possession of the property in question. subsequently, on 13-7-198:1, the Court issued rule and confirmed the an-interim relief granted on 3-7-1981. ( 3 ) PETITIONER No. 1 is holding agricultural lands admeasuring 13 Acres 13 gunthas. Petitioner No. 2 is holding agricultural land admeasuring 6 Acres 36 gunthas~ Petitioner No. 3 is holding agricultural land admeasuring 5 Acres 36 gunthas. Petitioner No; 4 is holding agricultural land admeasuring 10 Acres 25 gunthas. These lands are situated at village Radhu. By passing a resolution, Gram panchayat decided to acquire some lands for the purpose of extension of village site on or about 11/09/1970. Some parts of the lands of the petitioners were-to be acquired. The resolution remained unattended till 13/04/1976. The petitioners contention is that they were not aware about any proceedings initiated by the Gram Panchayat. Special Land Acquisition Officer, Kheda Was appointed to perform the functions of Collector under Sec. 5 (A) of the Land Acquisition Act. In a notification which was published in the Government Gazette on 5/01/1978, it was indicated that the lands specified in the Schedule were likely to be acquired for "public purpose", i. e. , for extension of village site at Radhu and that Government of Gujarat has appointed Special Land Acquisition Officer, Kheda to perform the functions of Collector under Sec. 5 (A) of the Act in respect of the lands mentioned in the Sehedule of the said notification. ( 4 ) UNDER Sec. 4 of the Act, it is mandatory that: the Collector shall cause public notice of: the substance of the notification to be given at convenient place in the said locality where the property is situated. Section 4 (1), of the Act is the relevant section, which reads as under :-"4. ( 4 ) UNDER Sec. 4 of the Act, it is mandatory that: the Collector shall cause public notice of: the substance of the notification to be given at convenient place in the said locality where the property is situated. Section 4 (1), of the Act is the relevant section, which reads as under :-"4. Publication preliminary notificntion and powers offficers thereupon.- (1) Whenever it appears to the appropriate Government that land in any locality is needed or is likely to be needed for any public purpose, or for a company, a notification to that effect shall he published in the official gazette, and in two daily newspapers circulating in that locality of which atleast one shall be in the regional language, and the Collector shall cause public notice of the substance of such notification to be given at convenient places in the said locality, the last of the dates of such publication and thegiving of such public notice, being hereinafter referred to as the date of the publication of the notificafon. "thus, reading this section, it is very clear that mere publication of notification in the official gazette and in two daily newspapers circulating in that locality itself is not sufficient but the Collector shall have to also cause public notice of the substance of sub notification at convenient places in the said locality. In paragraph 5 of the petition, the petitioners have stated that - "the petitioners say that the substance of the said notification was not published by public notice at convenient places in the locality as required by Sec. 4 of the Act. " It is further averred that "the notification was not served upon the petitioners as required to be served under rule 1 of the Bombay Land Acquisition Rules and the petitioners did not know anything about the publication of the said notification and, therefore, it was not possible flor the petitioners to submit their objections against the proposed acqulsltlon of the petitioners lands. " These averments are not denied by the respondents and, therefore, we have to accept these averrnents as true which are made on oath. Though this petition is filed in 1981, till this date, respondents have not chosen to file the reply pointing out as to whether the respondents have followed the procedure laid downin the Act or not. " These averments are not denied by the respondents and, therefore, we have to accept these averrnents as true which are made on oath. Though this petition is filed in 1981, till this date, respondents have not chosen to file the reply pointing out as to whether the respondents have followed the procedure laid downin the Act or not. If there is compliance with Sec. 4 then one can say that there was a proper notice. Opportunity of hearing is provided under Sec. 5 (A) of the Act. Any person interested in any land shall havetn object to the acqulsltlon within 30 days from the date of the publication of notification under Sec. 4 of the act. Sec. 15 (A) the Act reads as under :-"5-A. Hearing of objections.- (1) Any person interested in any land which has been notified under Sec. 4, sub-sec. (l)as being needed or likely to be needed for a public purpose or foi a company may, within thirty days from the date of the publication of the notification object to the acquisition of the land or of any land in the locality, as the case may be. "the right given under Sec. 5 (A) (i) will become futile if there is no notification under Sec. 4 (1) of the Act because in that case, the person interested will have no opportunity to raise objection to the acquisition ( 5 ) LEARNED Government Pleader submitted that in the instant cases, there are no averments to the effect that there was no publication in the newspaper as required under Sec. 4 of the Act. It is an admittedlpusition that the notification was published in the Government Gazette and newspapers. Ordjnarilyt one would be inclined to take the view that when there is a publication in the Official Gazette and newspapers, then it is presumed to be a notice to all on cerned. However, in the Act itself there is a specific mandate that over and above publication inthe Official Gazette and the newspapers as required, the Collector must also give publicity Of the substance of the notification in the concerned locality. However, in the Act itself there is a specific mandate that over and above publication inthe Official Gazette and the newspapers as required, the Collector must also give publicity Of the substance of the notification in the concerned locality. Dealing with this issue, the Apex Court, in the case of State of Mysore v. Abdul Razak, reported in AIR 1973 SC 2361 , has held as under in paragraph 4 of the judgment :-"under the circumstances, publications in the Official Gazette are presumed to be notice to all concerned. But in the case Of a notification under Sec. 4 of the Land acquisition Act, the law has prescribed that in addition to the publication-of the notification in the Official Gazette the Collector must also give publicity of the substance of the notification in the concerned locality. Unless both these conditions are satisfied, Sec. 4 of the Land Acquisition Act cannot be said to have been complied. The publication of the notice in the locality is a mandatory requirement. It has an important purpose behind it. In the absence of such publication, the interested persons may not be able to file their objections about the acquisition proceedings and they will be deprived of the right of representation provided under sec. 5a which is very valuable right. " (Emphasis supplied by us) ( 6 ) IT is required to be noted that it is an unfortunate situation that though the apex Court has taken this view as back as in 1973, the acquiring body has not followed the mandate. In view of the aforesaid, we conclude that the impugned notification is not in compliance with the requirement of law. Hence, it would be just and proper to quash the proceedings which have been initiated for acquisition of the lands in question. Proceedings for acquisition of the lands of the petitioners under the said notification at Annexure c are quashed and set aside. In the result, this petition is allowed. Rule is made absolute, with cost. .