C.M. No. 15681 of 2010 and 1 CWP No. 2924 of 2010 IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH C.M. No. 15681 of 2010 and CWP No. 2924 of 2010 Date of decision: 09.11.2010 Master Sahaj Ram and others ….. PETITIONERS VERSUS State of Haryana and others ….. RESPONDENTS CORAM:HON’BLE MR. JUSTICE JASBIR SINGH HON’BLE MR. JUSTICE AUGUSTINE GEORGE MASIH Present: Mr. Shailendra Jain, Advocate, for the petitioners. Ms. Shubhra Singh, DAG, Haryana, for respondents No. 1 and 2. Mr. B.R.Mahajan, Advocate, for respondent No. 4. *** Jasbir Singh, J. (Oral) C.M. No. 15681 of 2010 C.M. is allowed. Replication to the written statement of respondents No. 1 and 2 along with Annexures P-10 and P-11 is taken on record. CWP No. 2924 of 2010 By filing this writ petition, the petitioners have impugned notification dated 08.10.2008 (P-5) issued under Section 4 of the Land Acquisition Act, 1894 (for short 'the Act') to acquire 0.09 Acres of land for a C.M. No. 15681 of 2010 and 2 CWP No. 2924 of 2010 public purpose, namely, for the development and utilization of land for residential, Sector-12, Gurgaon. Further challenge is to the declaration issued under Section 6 of the Act on 07.10.2009 (P-7). It is contention of the counsel for the petitioners that when notification under Section 4 of the Act was issued, mandatory requirement contained in Section 4 of the Act of publishing the notification in two newspapers, was not adhered to. In the writ petition, it was averred as under:- “8. That it may be mentioned here that the aforesaid notification was allegedly published by the respondents in the Official Gazette dated 8.10.2008, yet the same was not published in the two newspapers, one of which was to be in the regional language,having wide circulation in the area where the land in question is situated. It may also be respectfully submitted here that the public notice of the substance of the notification was also not caused to be done by the respondent No. 2 at convenience places in the locality where the land in question is situated in terms of the provisions of Section 4 (1) of the said Act inasmuch as though Rapat Roznamcha No. 440 for the year 2008-09 was entered in the Register of Roznamcha by the Halqa Patwari, but a bare perusal of the said Rapat Roznamcha, a true copy of which is annexed herewith as Annexure P-6 would show that the same fails to mention the name of the person who allegedly carried out the same by beat of drum. The alleged public notice also C.M. No. 15681 of 2010 and 3 CWP No. 2924 of 2010 fails to mention the convenient places at which the same was alleged given in the locality of the area where the land in question is situated. It bears the signatures of no one who might have carried out the same. Thus, the entire exercise of carrying out the public notice of the substance of the said notification is also nothing but a paper transaction inasmuch as no such public notice was ever caused to be done in the area of village Gurgaon where the land in question is situated and as such the petitioners and/or for that matter other residents of the village Gurgaon could not come to know about the issuance of the said notification under Section 4 of the said Act.” It is specifically averred in the above paragraph that the notification in question was not published in two newspapers as is necessary under the provisions of Section 4 of the Act. In the reply filed, the above-said fact was not controverted. In para-1 of the reply, it was stated as under:- “1. Brief facts of the present acquisition are that the notification u/s 4 of the Land Acquisition Act (hereinafter called the Act) for the acquisition of the land of the petitioners was issued on 8.10.2008. The land in dispute of the petitioner situated in revenue estate of village Gurgaon Tehsil & Distt. Gurgaon, was notified for the development and utilization of the land for Residential, Sector-12 at Gurgaon. This notification u/s-4 of the Act was published in Haryana Govt. C.M. No. 15681 of 2010 and 4 CWP No. 2924 of 2010 Gazette on the same day. The entry of the notification was made in the patwari Halqa Roznamcha Wakayati vide rapat No. 440 Dated 15-11-2008 for the land situated in the revenue estate of village Gurgaon. The substance of said notification was also pasted on the notice board of Halqa Patwar Khana and Tehsil Office. Munadi was also done through village chowkidar by beating of empty drum in the village and in the vicinity of the land to be acquired. Thereafter, the declaration u/s-6 of the LA Act was issued on 7.10.2009 well in accordance with Law. The said declaration was published in Haryana Govt. Gazette. The entry of the declaration was made in the Roznamcha Wakayati Halqa Patwari vide rapat No. 218 dated 20-10-2009 for the land situated in revenue estate of village Gurgaon. The substance of the declaration u/s-6 of the L.A. Act was pasted on the notice board of Halqa Patwar Khana and Tehsil Office. Munadi of the said declaration was made by village chowkidar by beating of empty drum in the vicinity of the land sought to be acquired and in the village. The land was required for public purpose namely for the development and utilization of land for Residential, Sector-12 at Gurgaon, under Haryana Urban Development Authority Act, 1977 by HUDA. The acquisition proceedings are legal and sustainable in the eye of law and same are as per the demarcation plan given by the Distt. Town Planner, Gurgaon. So, the instant writ petition is liable to be dismissed on this score alone.” C.M. No. 15681 of 2010 and 5 CWP No. 2924 of 2010 Nothing was stated in the corresponding para No. 8 on merits. At the time of arguments, counsel for the respondents has failed to show us any proof that notification under Section 4 of the Act was published in two newspapers, as is mandatory under the provisions of Section 4 of the Act. If that is so, for non-compliance of the mandatory provisions to acquire land, the notifications, under challenge, cannot be sustained. It was so held by the Hon'ble Supreme Court in the case of The Collector (Distt. Magistrate), Allahabad and another vs. Raja Ram Jaiswal, AIR 1985 Supreme Court 1622, wherein dealing with a similar situation, it was observed as under:- “ 13. A bare perusal of Sec. 4 (1) clearly shows that in order to comply with the statutory requirements therein set out, a notification stating therein the land which is needed or is likely to be needed for a public purpose' has to be published in the official Gazette. The second part of the sub-section provides that 'the Collector has to cause public notice of the substance of such notification to be given at convenient places in the locality in which the land proposed to be acquired is situated. Both the conditions are held by a catena of decisions to be mandatory Whether the second condition is mandatory or directory is no more res integra. In Khub Chand and Ors. v. State of Rajasthan (1967) 1 SCR 120 at P.125 (AIR 1967 SC 1074 and P 1077), Subba Rao, CJ speaking for the court observed that 'the statutory intention is, therefore, clear, namely, that the giving of public notice is mandatory. If so,the notification issued C.M. No. 15681 of 2010 and 6 CWP No. 2924 of 2010 under s. 4 without complying with the said mandatory direction would be void and the land acquisition proceedings taken pursuant thereto would be equally void.' While reaching this conclusion, the Court distinguished the decision in Babu Barkya Thakur v. The State of Bombay (1`961) 1 SCR 128 (AIR 1960 SC 1203) wherein it was held that 'any defect in the notification under Sec. 4 is not fatal to the validity of the proceedings, particularly when the acquisition is for a company and the purpose has to be investigated under s. 5A or s. 40 necessarily after the issue of the notification under s. 4 of the Act'. The Court pointed out that the defect with which the notification in Bau Barkya Thakur's case suffered was of a formal nature and did not go to the root of the matter. However, the decision is not an authority for the proposition that if a public notice of the notification was not given as prescribed by s. 4, it can be ignored. The pertinent observation of the court is that such an approach would constitute re-writing The section. The court also referred to Smt. Somavanti and Ors. v. The State of Punjab & Ors.(1963) s SCR 774 (AIR 1963 SC 150) and quoted with approval the statement therein made that a valid notification under sub-s. (I) of Sec. 4 is a condition precedent to the making of a declaration under sub-s. (1) of Sec. 6. This view has been consistently followed and was approved in State of Mysore v. Abdul Razak Sahib(1973) 1 SCR 856 (AIR 1973 SC 2361), wherein it was observed that in the case of a notification under C.M. No. 15681 of 2010 and 7 CWP No. 2924 of 2010 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, s. 4 of the Land Acquisition Act cannot be said to have been complied with. The publication of a notice in the locality is a mandatory requirement. Mr. Kacker however, drew our attention to a few more observations in the judgment wherein it was said that there is an important purpose behind publication of the substance of the notification in the locality because in the absence of such publication, the interested persons may not be able to file their objections challenging the proposed acquisition and they will be denied an opportunity afforded by s. 5A which confers a very valuable right. Relying on this observation Mr. Kacker urged that if the underlying purpose behind publication of a notice in the locality is to give an opportunity to the person interested in the land to object to the acquisition, where in a case the purpose is achieved as in this case the petitioner having filed his objections, the failure to publish the substance of the notification in the locality need not be treated fatal and cannot invalidate the proceedings. The submission as presented is very persuasive and but for binding precedents, we would have accorded considerable attention to it. But we would not whittle down a mandate of legislation recognised by a long line of decisions solely depending upon the facts of a given case. Further the submission is predicated upon an assumption that C.M. No. 15681 of 2010 and 8 CWP No. 2924 of 2010 the sole purpose behind publication of substance of notification in locality is to make requirements of Sec. 5A functionally effective. The assumption as would be pointed out is not well founded. In fact, the court in the last mentioned case went so far as approving the decision of the Mysore High Court in Gangadharaih v.State of Mysore & Ors. (1961) 1 MYSLJ 883 wherein it was ruled that 'when a notification under s. 4 (1) is published in the official Gazette and it is accompanied by or immediately followed by the public notice, that a person interested in the property proposed to be acquired can be regarded to have had notice of the proposed acquisition.' This is a mandatory requirement for legal compliance with requirements of Sec. 4 (1).In Narendra Bahadur Singh and Anr. v. State of U.P. & Ors(1977)SCR 226 (AIR 1977 SC 660) this Court reiterated that a publication of the notice in the locality as required by the second part of s. 4 (1) is mandatory and unless that notice is given in accordance with the provisions contained therein, the entire acquisition proceedings are vitiated. Repelling the contention, that the only purpose behind publication of a notice in the locality is to give opportunity to the person interested in the land to prefer objections under Sec. 5A which confers a valuable right, it was held that even though in the facts of that case, the inquiry under s. 5A was dispensed with by a direction under Sec. 17 (4) of the Act, the failure to comply with the second condition in Sec. 4 (1) is fatal. It was pertinently observed that provisions of Sec. 4(1) cannot be held to be mandatory in one C.M. No. 15681 of 2010 and 9 CWP No. 2924 of 2010 situation and directory in another and therefore, it cannot be said that the only purpose behind making the publication of notice in the locality mandatory is to give an opportunity to the persons interested in the land to file objections under Sec. 5A. Of course, what other object it seeks to subserve has been left unsaid. But the answer is not far to seek. At least we have no doubt that the only visible and demonstralle purpose behind publication of the substance of the notification under Sec. 4 (1) in the locality where the land proposed to be acquired is situated, is to give the persons interested in the land due opportunity to submit their considered objections against the proposed notification.” It was held by the Hon'ble Supreme Court that the provisions of Section 4 of the Act are mandatory and non-compliance will entail quashing of the acquisition proceedings. In view of above,this writ petition is allowed. The notifications, under challenge, are set aside. However, the authorities are at liberty to proceed afresh to acquire the land, if need be. ( JASBIR SINGH ) JUDGE ( AUGUSTINE GEORGE MASIH ) JUDGE November 09, 2010 pj