JUDGMENT
Rama Jois, J.
1. These appeals are presented by the appellants against the common
order of the learned Single Judge made in the Writ Petitions in which
the acquisition of land for the purpose of construction of a Bus Stand
by the Karnataka State Road Transport Corporation was challenged.
2. The facts of the case, in brief, are as follows; A notification
under Sub-section (1) of Section 4 of the Land Acquisition Act, 1894
(in short ‘the Act’) was issued proposing to acquire the land
belonging to the appellants situate at Sindhanoor Town, Raichur
District, for a public purpose, viz., for construction of a Bus Stand,
by the K.S.R.T.C. The Preliminary Notification was published in the
Official Gazette on 10-3-1977. After following the prescribed
procedure under Section 6 of the Act, the final notification was
issued. Questioning the legality of the said acquisition, the
appellants preferred the Writ Petitions. The Writ Petitions were
dismissed, by a common order made by the learned Single Judge on
24-10-1986. Aggrieved by the said order, the appellants have presented
these appeals.
3. The main contention of the appellant in W.A. No. 3437 of 1986 is
that service of individual notice on the owner of the land was
mandatory and as no individual notice was served on the appellant, the
entire acquisition proceedings were contrary to law.
4. Sub-section (1) of Section 4 of the Act prescribes two mandatory
conditions regarding publication of the preliminary notification. They
are:
(i) Publication of the preliminary notification in the Official
Gazette; and
(ii) Publication of the substance of the preliminary notification
in the locality concerned.
Section 4(1) of the Act also provides that the Deputy Commissioner
may also cause the copy of such notification to be served on the
owner, or where the owner is not the occupier on the occupier of the
land. The question as to whether the service of individual notice is
also mandatory or not, was the subject matter for consideration, by a
Division Bench of this Court in STATE OF KARNATAKA & OTHERS v.
KEMPAIAH & OTHERS, 1984(1) KLJ 521. The Division Bench, disagreeing
with the view taken in an earlier case, by a learned Single Judge,
held that the requirement was not mandatory. The conclusion is found
at paragraph-28 of the Judgment. It reads:
“On the above discussion, with respect to our learned
Brother, we are of the opinion that the requirement of Section 4(1) of
the Act providing for service of a copy of the preliminary
notification is not mandatory and cannot be construed as ‘shall’ and
the word ‘may’ has to be construed as ‘may’ only or permissible and
directory only.”
5. Sri V.T. Rayareddi, learned Counsel for the appellants submitted
that the said view has to yield to the ratio of the decision of the
Supreme Court in STATE OF MYSORE & OTHERS v. V.K. KANGAN & OTHERS, . The learned Counsel pointed out that Rule 3(b) of the
Land Acquisition Rules framed by the Former State of Madras which had
continued in the concerned area of the new State after the
reorganisation of the State, was held to be mandatory and therefore,
the provisions of the third requirement of Section 4(1) should also be
held to be mandatory.
6. In our view, the ratio of the said decision is not at all
apposite to this case. In that case, the question for consideration
was whether non-compliance of Rule 3(b) of the Madras Land Acquisition
Rules which made obligatory for the Inquiring Authority to issue
notice to the acquiring body, rendered the acquisition invalid. The
Supreme Court held that the provisions of the said Rule made it
obligatory for the Officer holding enquiry under Section 5(A) of the
Act to issue notice to the body at whose instance, the land was
proposed to be acquired and therefore, non-compliance of the said rule
rendered the acquisition invalid. Section 4(1) of the Act has not been
interpreted in that case, and therefore the said decision does not in
any way affect the ruling of this Court in Kempaiah’s case 1984(1) KLJ
521.
7. In Kempaiah’s case, 1984(1) KLJ 521, the Division Bench pointed
out that whereas the earlier part of Section 4(1) provided that the
preliminary notification shall be published in the Official Gazette
and shall also be published in the locality concerned the latter part
of the same section only provided that the Deputy Commissioner may
also cause the copy of such notification to be served on the owner or
where the owner is not the occupier on the occupier of the land
concerned. After applying the relevant principles required to be
applied to find out as to whether a statutory provision is mandatory
or directory, the Division Bench concluded that the requirement of
issuing individual notice was not mandatory. We are in respectful
agreement with the view taken by the Division Bench.
8. The learned Counsel relied on the Judgment of the Bombay High
Court in AJIT SINGH v. STATE OF MAHARASHTRA, AIR 1972 Bombay 1977 in which the Bombay
High Court had held that the service of individual notice was
mandatory. As can be seen from the said decision, the Government of
Maharashtra had framed Rules in exercise of the power under Section 55
of the Land Acquisition Act and the Rule made it obligatory for the
Inquiring Authority to serve individual notice. There is no such rule
framed by the Government. On the other hand, Rule 3 of the Rules,
framed by the Government is also similarly worded as Sub-section (1)
of Section 4. Therefore, the said decision is of no assistance to the
appellants. Further it should be pointed out that this decision was
considered by the Division Bench before coming to the conclusion that
the requirement of individual notice was not mandatory. For the same
reason the decision of the Gujarat High Court in MEGANBHAI VANASHIBHAI
PATEL v. STATE OF GUJARAT & OTHERS, is also of no assistance for,
the rule interpreted in that decision is the same which was
interpreted by the Bombay High Court. In the circumstances, we are of
the view that the acquisition in question cannot be set aside on the
ground that no individual notice had been served on the
appellants.
9. The learned Counsel for the appellants next contended that there
was a difference in the description of the land acquired in the final
notification and the preliminary notification. He submitted that in
the preliminary notification Sy. No. was given correctly and in the
final notification a wrong Sy. No. had been given. We have looked into
the final notification, a photostat copy of which was produced by the
learned Counsel. There is no such misdescription. According to the
final notification the plot belonging to the appellant was acquired.
The northern, southern, eastern and western boundaries of the plot
acquired are specified. It is not the case of the appellant that the
land belonging to the petitioner does not fall within the four
boundaries specified therein. The learned Counsel submitted that
actually an award had been made for an area of 60 x 220′ whereas the
area mentioned in the final notification was East to West – 40′ and
North to South – 200′. Even on the basis that in specifying area there
has been a mistake, i.e., instead of mentioning 60′ x 220′ it was
mentioned as 40′ x 200′, that mistake cannot constitute a ground for
setting aside the acquisition for the reason the entire plot belonging
to the appellant with the four boundaries mentioned in the
notification has been acquired. It is also well settled position in
law that wherever there is inconsistency between the area and the
boundary the latter prevails. If we look into the boundaries specified
in the final notification, the plot belonging to the appellant has
been acquired. Hence there is no substance in the objection.
10. In the other appeals, the learned Counsel for the appellants
urged two grounds:
(i) No opportunity of hearing was given; and (it) There was no
communication to the appellants as to the submission of the report of
enquiry under Section 5A of the Act to the Government as required
under the provisions of the Act. As far as the first ground is
concerned, as can be seen from the order of the learned Single Judge
on a perusal of the record, it was found that everyone of them had
engaged Advocate, who had appeared before the Inquiring Authority and
the Advocate had been heard. Therefore, the said contention is
untenable.
11. As far as the second ground is concerned, no such ground was
urged before the learned Single Judge. Even in the petitions it
appears that no such ground has been raised. The question as to
whether there had been a communication about the Submission of the
report to the Government, is a question of fact and it cannot be
permitted to be raised in the appeals as the same was not raised in
the Writ Petitions.
12. In the result, we make the following order :
Writ Appeals are dismissed.