Kulsum R. Nadiadwala
Vs. State of Maharashtra & Ors.
[Civil Appeal No.4473
O R D E R
appeal is directed against the judgment and order passed by the High Court of
Judicature at Bombay in Writ Petition No.2699 of 1987 dated21.07.1998. By the impugned
judgment and order, the High Court has dismissed the writ petition filed by one
of the interested persons, having interest in land Survey No.119/3 Pt. situated
at Village Malad, Taluka, Borivali, District Bombay Suburban.
4 Notification dated 24.10.1975, under the provisions of the Land Acquisition
Act, 1894 (for short 'the Act') came to be issued by the State Government to
acquire certain piece of lands situated in different villages for the purpose
of establishing Central Ordinance Depot for the Union of India (Military).
beneficiary of these lands is the Central Government. They are served, but at
the time of hearing of this appeal, they were not present before the Court and,
therefore, we had no occasion to hear the learned counsel for the Union of
have heard Mr. Jay Savla, learned counsel for the appellants and Mr. Shankar
Chillarge, learned counsel for the State of Maharashtra.
appellants, herein, claim that they are the legal heirs of deceased Ismail
Nadiadwala. During the lifetime of Ismail Nadiadwala, the State Government had
issued notifications under Sections 4 and 6 of the Act to acquire various lands
for a public purpose, namely, for establishing military personnel ordinance on
the land which belonged to late Ismail Nadiadwala and one Ibrahim Nadiadwala.
They had a joint interest in theproperty.
such acquisition and without issuing any notice to the appellants and after
hearing only Ibrahim Nadiadwala, the award came to be passed by the State
Government vide order dated 23.09.1986. Immediately, thereafter, Ibrahim
Nadiadwala had requested the State Government to permit him to look into the
records to find out whether he had issued with any notice. Since such
permission was not granted to him, he had filed a petition before the High Court
under Articles 226 and 227 of the Constitution of India, inter alia, questioning
the notifications issued under Sections 4 and 6 of the Act.
we have already noticed, the Division Bench of the Bombay High Court has dismissed
the petition filed by the appellants.
counsel appearing for the appellants would contend that the respondent-State,
while issuing the notification under Section 4(1) of the Act, had not complied
with the mandatory requirement, that is, to publish the notification in a public
place. Secondly, it is stated that the appellants' predecessor was recorded as
the owner of the property and no individual notice was issued to him.
It is further
contended that Section 6 of the notification was the subject matter of a Writ Petition
before the High Court in Writ Petition No.149/1979. The High Court vide its order
dated 6.9.1982, while allowing the petition, had quashed the notification dated
22.11.1978 issued under Section 6 of the Act and the order so passed was not questioned
by the respondent-State before any other forum.
According to learned
counsel, since the order so passed by the learned Judge had attained finality,
the respondent cannot now contend that it was confined only to the appellants
in the said Writ Petition. Learned counsel further submits that after the Award
was made, possession of the lands requires to be taken as provided under
Section 16 of the Act. According to learned counsel, in the instant case, the respondents
have not taken possession of the lands as envisaged under Section 16 of the Act.
Their stand appears
to be that since the lands were already in possession of the Defence
establishment, possession as required under Section 16 of the Act need not be
resorted to. Lastly, learned counsel would submit that after Section 6
notification was issued at the instance of the beneficiary of the notification,
certain lands came to be deleted from Section 6 notification and the same could
not have been done without resorting to provisions of Section 48 of the Act.
For all these reasons, the learned counsel would contend that, the notification
issued by the State Government qua the appellants requires to be quashed.
contra, learned counsel for the State submits that there was delay on the part
of the legal representatives of the registered owner and they did not
approached the Court within a reasonable time, and therefore, the Writ Petition
ought to have been rejected by the High Court only on the ground of delay and
laches on the part of the appellants in approaching the Court. Insofar, as the
other legal contentions advanced by the learned counsel for the appellants
before us, it appears that the learned counsel had no answers whatsoever. In fact,
he did not also answered them.
4 of the Land Acquisition Act reads as under : “Publication of preliminary
notification and power of officers thereupon.-
appears to the[ appropriate Government] the 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 be published in the Official Gazette[ and in two
daily newspapers circulating in that locality of which at least 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 the giving of such public
notice, being hereinafter referred to as the date of the publication of the notification)].
(2) Thereupon it shall
be lawful for any officer, either generally or specially authorized by such
Government in this behalf, and for his servants and workman,- to enter upon and
survey and take levels of any land in such locality; to dig or bore into the
sub- soil; to do all other acts necessary to ascertain whether the land is adapted
for such purpose; 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; 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; 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.
“The said provisions
came up for consideration before this Court in the case of Collector (District
Magistrate) Allahabad & Anr. Vs. Raja Ram Jaiswal, (1985) 3 SCC 1. In the said
decision, the Court specifically observed that there are two requirements for
the issuance of Notification under Section 4 of the Act. The first requirement
is that the notification requires to be published in an Official Gazette and
the second requirement is that the acquiring authority should cast public notices
of the substance of such notification in a convenient place in the locality in which
the land proposed to be acquired is situate. The Court has further observed that
both the contentions are cumulative and they are mandatory.
the instant case, the respondents before the High Court had filed their reply affidavit.
They did not dispute the contentions of the appellants that they had not issued
any public notices as required under Section 4 of the Act. They only reiterated
that such notification was published in the Official Gazette.
the mandatory requirement as required under Section 4(1) of the Act is not
complied with by the respondents, while acquiring the lands in question, in our
opinion, the entire acquisition proceedings requires to be declared as null and
void. This Court in J&K Housing Board v. Kunwar Sanjay Krishan Kaul,(2011)
10 SCC 714, has observed that all the formalities of serving notice to the
interested person, stipulated under Section 4 of the Act, has to be mandatorily
complied with in the manner provided therein, even though the interested persons
have knowledge of the acquisition proceedings. This Court further observed
32. It is settled law
that when any statutory provision provides a particular manner for doing a particular
act, the said thing or act must be done in accordance with the manner
prescribed there for in the Act. Merely because the parties concerned were aware
of the acquisition proceedings or served with individual notices does not make
the position alter when the statute makes it very clear that all the
procedures/modes have to be strictly complied with in the manner provided
Merely because the
landowners failed to submit their objections within 15 days after the
publication of notification under Section 4(1) of the State Act, the
authorities cannot be permitted to claim that it need not be strictly resorted
view of the conclusion that we have reached on the first issue canvassed by
learned counsel for the appellants, we do not think that the other issues that
the learned counsel for the appellants has raised and canvassed before us need
to be answered.
view of the above, while allowing this appeal, we restrict the claim of the
appellants only to 50% of the lands in question, namely, lands in Survey No.119/3
Pt. situated at Village Malad, Taluka, Borivali, District Bombay Suburban.
further direct that the respondents shall handover 50% of the vacant possession
of the said land to the appellants forthwith. No costs.
(ANIL R. DAVE)