KULSUM R. NADIADWALA Vs STATE OF MAHARASHTRA
Bench: H.L. DATTU,ANIL R. DAVE
Case number: C.A. No.-004473-004473 / 2000
Diary number: 20569 / 1998
Advocates: JAY SAVLA Vs
D. N. GOBURDHAN
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IN THE SUPREME COURT OF INDIA CIVIL APPELLATE JURISDICTION
CIVIL APPEAL NO.4473 OF 2000
KULSUM R. NADIADWALA ... APPELLANT
VERSUS
STATE OF MAHARASHTRA & ORS. ... RESPONDENTS
O R D E R
1. This appeal is directed against the judgment
and order passed by the High Court of Judicature at
Bombay in Writ Petition No.2699 of 1987 dated
21.07.1998. 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.
2. Section 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
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situated in different villages for the purpose of
establishing Central Ordinance Depot for the Union
of India (Military).
3. The 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 India.
4. We have heard Mr. Jay Savla, learned counsel
for the appellants and Mr. Shankar Chillarge,
learned counsel for the State of Maharashtra.
5. The 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
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late Ismail Nadiadwala and one Ibrahim Nadiadwala.
They had a joint interest in the property.
6. After 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.
7. As we have already noticed, the Division Bench
of the Bombay High Court has dismissed the petition
filed by the appellants.
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8. Learned 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
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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.
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9. Per 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.
10. Section 4 of the Land Acquisition Act reads as
under :
“Publication of preliminary
notification and power of officers
thereupon.-
(1)Whenever it appears to the[
appropriate Government] the land in any
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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
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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
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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.
11. In 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.
12. Since 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.
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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 thus:
32. It is settled law that when any statutory pro- vision provides a particular manner for doing a particular act, the said thing or act must be done in accordance with the manner prescribed therefor 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 therein. Merely because the landowners failed to submit their objections within 15 days after the publication of notifica- tion under Section 4(1) of the State Act, the au- thorities cannot be permitted to claim that it need not be strictly resorted to.
13. In 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
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canvassed before us need to be answered.
14. In 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.
15. We further direct that the respondents shall
handover 50% of the vacant possession of the said
land to the appellants forthwith.
No costs.
Ordered accordingly.
...................J. (H.L. DATTU)
...................J. (ANIL R. DAVE)
NEW DELHI; APRIL 17, 2012