JUDGMENT
Hrishikesh Roy, J.
1. Heard Mr. A.K. Bhowmik, learned Senior counsel appearing for the petitioner. Also heard Mr. T.D. Majumder, Learned Addl. G.A. representing the State respondents.
2. The petitioner who is the owner of a plot of land under Khatian No. 2224 (previous C.S. plots No. 925/44916 under Khatian No. 24036) measuring 0’0030 acres, is before this Court to challenge the memorandum dated 7.7.2004 issued by the Land Acquisition Collector, West Tripura, (Annexure-4) whereby the possession of the said land was directed to be taken over and be handed over to the Executive Engineer, Agartala Div. No. III for the purposes of construction of R.C.C. Bridge over river Katakhal near Durga Chowmuhany, Agartala.
3. It appears that a notice Under Section 4 of the Land Acquisition Act, 1894 (herein after referred to as the L.A. Act) was issued on 24.8.2000 for acquiring 0’0947 acres of land for construction of a RCC Bridge over river Katakhal. In the said Section 4 Notification, 7 part-plots under 7 Khatians belonging to various people including relatives of the petitioner were notified for acquisition. However, the plot of the petitioner was not notified under the said Section 4 Notification.
4. The petitioner contends that the plot of the petitioner is sought to be taken over by the respondents authorities without acquisition and it is pointed out that when the possession was decided to be taken over the impugned by order dated 7.7.04 and it was challenged by filing the present Writ petition, the Government issued a corrigendum on 16.10.06 (Annexure R.3) during the pendency of the petition, to include the plot of the petitioner for the purposes of the Notification issued Under Section4 of the L.A. Act.
5. Mr. A.K. Bhowmik, learned Sr. counsel appearing for the petitioner submits that process of acquisition of land can initiate only with issuance of Section 4 Notification, which in the instant case did not cover the land of the writ petitioner and as such the impugned possession take over notice dated 7.7.2004 should be declared as un-lawful and the respondents authorities ought not to be permitted to take over the possession of the land belonging to the petitioner.
6. The learned Sr. counsel further argues that if the plot of the writ petitioner would have been notified Under Section 4 Notification issued on 24.8.2000, the Writ Petitioner would have the opportunity to file objection and participate in the enquiry as envisaged Under Section 5 of the L.A. Act and since the said opportunities were denied to the petitioner, the corrigendum notice dated 16.10.04 can not relate back to 24.8.2000 when the initial Section 4 Notification was issued by the Government.
7. It is further contended that compensation for the land acquired under the L.A. Act are determined Under Section 23 with reference to, inter alia, the market value of the land on the date of publication of Section 4 Notice and since no notice in respect of the land of the petitioner has been issued till date, the corrigendum dated 16.10.04 cannot be considered to be a Notice Under Section 4 of the L.A. Act. Accordingly it is contended that if the authorities are interested in acquiring the land of the petitioner, a fresh Section 4 Notice has to be issued to set acquisition process in motion in which case the petitioner would be entitled to compensation on market value of the land determined as on the date of fresh Section 4 Notification.
8. Mr. T.D. Majumder, learned Addl. G.A. on the other hand submits that the petitioner had full knowledge about the acquisition process initiated by the Government by issuing the Section 4 Notification inasmuch as, the lands of her relatives and lands of neighbours of the petitioners contiguous to the land of the petitioner, have been notified for acquisition by the notice dated 24.8.2000, although the plot number of the petitioner was not mentioned in the said Section 4 Notification. In the Notification itself it was indicated that the land plan of the acquired land is available for inspection in the office of the Collector. West Tripura and all persons interested who might have objection to the acquisition may file their objection before the L.A. Collector.
It is also submitted that in the said land plan available for inspection and prepared by the acquisition authorities, it was clearly indicated that plot of the petitioner is also subjected to acquisition and it is accordingly con-tended that the petitioner can not say that she had no knowledge of the acquisition process initiated to acquire lands for a public purpose, and that her plot is also included for acquisition as is revealed from the land plan.
9. It is further contended on behalf of the Government that the petitioner as occupier of land was also served with a notice dated 1.2.2001 which was received by her husband and although the petitioner did not appear in response to the said notice issued under Form No. IX, her husband appeared before the acquiring authorities in respect of notice issued for other owners of land and accordingly the mistake of omission of the plot of the land in the Section 4 Notification, is cur-able by issuing errata Notification dated 16.10.2004. Accordingly it is contended that there can not be any challenge in the acquisition process, for the land in question.
10. The learned Counsel has also referred to a decision of the Supreme Court . the State of T.N. v. Mahalakshmi Ammal to contend that once errata Notification dated 16.10.04 was issued incorporating the plot number owned by the petitioner, the said errata Notification would relate back to the date of the Section 4 Notification issued on 24.8.2000 and accordingly the petitioner would be entitled to compensation as per the market value of the land prevailing on the date of the said Notification i.e. dated 24.8.2000.
11. In this case it is not disputed that the plot owned by the petitioner was not notified in the Section 4 Notification issued on 24.8.2000 although several other plot number were mentioned in the said notification. After the writ petition was filed challenging the possession take over notice dated 7.7.2004, the respondents realized their mistake and hastily issued the corrigendum dated 16.10.04 incorporating the plot number owned by the petitioner for the purpose of acquisition proceeding initiated on 24.8.2000 by issuing the notice Under Section 4 of the L.A. Act. Since all the surrounding and adjacent plots of the petitioner have been acquired and taken over for a public purpose, it is obvious that the land of the petitioner can not remain un acquired by the Government. Otherwise the entire scheme of construction of bridge and its approach road may be adversely affected.
12. The issue that remains to be considered is whether by issuing the corrigendum Notification on 16.10.04, the Government can proceed to acquire the land of the petitioner.
13. Although in the land plan available in the Collector’s office, the plot of the petitioner was included in the land plan. The said plot was not notified in the notice issued Under Section 4 of the L.A. Act. Under such circumstances, to expect the petitioner to go and inspect the land plan kept available in the Collector’s office would be totally unrealistic. When the land of the petitioner is not notified for acquisition, there is no reason for the petitioner to visit the Collector’s office to inspect whether her plot is included in the land plan prepared for the purpose of Notification.
14. In so far as the notice dated 1.2.2001 issued to the petitioner as a possessor of certain land, it is clearly seen that said notice was issued in respect of another plot of land and not the land owned by the petitioner. There-fore, the receipt of notice dated 1.2.2001 which was received by the petitioners’ husband does not at all after the legal position taken by the petitioner. Legally she had no notice of acquisition of her plot of land.
15. Therefore, the question has to be decided as to whether. the corrigendum issued on 16.10.04 incorporating the plot number of the petitioner, can be said to be a Section 4 Notification under the L.A. Act.
16. The process of acquisition under the L.A. Act starts of with a Section 4 Notification and unless a plot sought to be acquired is notified in the Section 4 Notification, the acquisition proceeding cannot be held to have legally commenced. Of course in case of urgency an emergent take over of possession of land is permissible under the Act.
17. In the instant case, because of mistake of the acquisition authorities, the plot of the petitioner was not notified for acquisition in the Section 4 notice dated 24.8.2000. The question is whether the later corrigendum would relate back to the date of the Section 4 of the Notification as per the ratio of the decision cited by the respondents counsel in Mahalakshmi Ammal (supra).
The Supreme Court in Mahalakshmi Ammal (supra) ordered that once an errata incorporating the survey number is published, it dates back to the date of initial Section 4(1) Notification. But the said decision was rendered by the Supreme Court in the context of the facts of that case where the land owner had filed their objection to the notice issued Under Section 5-A of the L.A. Act and Rule 3 of the Rule and the owner had the opportunity and did participate in the enquiry conducted Under Section 5-A of the L.A. Act. Accordingly, the Supreme Court directed that with the issuance of the errata, the contents of the errata dates back to the date of Notification issued Under Section 4(1) of the L.A. Act.
18. But in the present case the petitioner never had any opportunity to file their objections under Section 5-A enquiry nor she participated in such enquiry. This is the vital difference in the present case and the decision and the facts of the Supreme Court decision cited by the Government counsel.
Therefore, I am of the opinion that the corrigendum issued on 16.10.04 cannot re-late back to the initial date i.e. 24.8.2000 where the Section 4 Notification was issued for the purpose of acquisition. Acquisition has to commences with a Notification of Section 4 of the L.A. Act which in the instant case is yet to be issued.
19. No doubt the acquisition is made for a public purpose namely, construction of approach road for RCC Bridge and the petitioner may not have any valid objection to make, for initiation of acquisition process. Nevertheless the petitioner has to be compensated for compulsory acquisition of land and such compensation has to be made with reference to the provision of Section 23 of the L.A. Act.
20. In view of above, it is considered appropriate to quash the possession take over notice dated 7.7.04 in so far the land of the petitioner as it appears that the petitioner is still in possession of her land measuring 0’0030 acres under the Khatian No. 2224.
21. If the authorities wish to acquire the said plan of the petitioner, it may do so by issuing an appropriate Notification Under Section 4 of the L.A. Act in which case the petitioner would be entitled to receive compensation payable on the basis of the market price prevailing on the date of Section 4 of the Notification.
With the aforesaid directions, this petition stands allowed. No cost.
