Full Judgment
Rama Jois, J.
1. These appeals are presented by the appellants against the commonorder of the learned Single Judge made in the Writ Petitions in whichthe acquisition of land for the purpose of construction of a Bus Standby the Karnataka State Road Transport Corporation was challenged.
2. The facts of the case, in brief, are as follows; A notificationunder Sub-section (1) of Section 4 of the Land Acquisition Act, 1894(in short 'the Act') was issued proposing to acquire the landbelonging to the appellants situate at Sindhanoor Town, RaichurDistrict, for a public purpose, viz., for construction of a Bus Stand,by the K.S.R.T.C. The Preliminary Notification was published in theOfficial Gazette on 10-3-1977. After following the prescribedprocedure under Section 6 of the Act, the final notification wasissued. Questioning the legality of the said acquisition, theappellants preferred the Writ Petitions. The Writ Petitions weredismissed, by a common order made by the learned Single Judge on24-10-1986. Aggrieved by the said order, the appellants have presentedthese appeals.
3. The main contention of the appellant in W.A. No. 3437 of 1986 isthat service of individual notice on the owner of the land wasmandatory and as no individual notice was served on the appellant, theentire acquisition proceedings were contrary to law.
4. Sub-section (1) of Section 4 of the Act prescribes two mandatoryconditions regarding publication of the preliminary notification. Theyare:
(i) Publication of the preliminary notification in the OfficialGazette; and
(ii) Publication of the substance of the preliminary notificationin the locality concerned.
Section 4(1) of the Act also provides that the Deputy Commissionermay also cause the copy of such notification to be served on theowner, or where the owner is not the occupier on the occupier of theland. The question as to whether the service of individual notice isalso mandatory or not, was the subject matter for consideration, by aDivision Bench of this Court in STATE OF KARNATAKA & OTHERS v.KEMPAIAH & OTHERS, 1984(1) KLJ 521. The Division Bench, disagreeingwith the view taken in an earlier case, by a learned Single Judge,held that the requirement was not mandatory. The conclusion is foundat paragraph-28 of the Judgment. It reads:
'On the above discussion, with respect to our learnedBrother, we are of the opinion that the requirement of Section 4(1) ofthe Act providing for service of a copy of the preliminarynotification is not mandatory and cannot be construed as 'shall' andthe word 'may' has to be construed as 'may' only or permissible anddirectory only.'
5. Sri V.T. Rayareddi, learned Counsel for the appellants submittedthat the said view has to yield to the ratio of the decision of theSupreme Court in STATE OF MYSORE & OTHERS v. V.K. KANGAN & OTHERS, : [1976]1SCR369 . The learned Counsel pointed out that Rule 3(b) of theLand Acquisition Rules framed by the Former State of Madras which hadcontinued in the concerned area of the new State after thereorganisation of the State, was held to be mandatory and therefore,the provisions of the third requirement of Section 4(1) should also beheld to be mandatory.
6. In our view, the ratio of the said decision is not at allapposite to this case. In that case, the question for considerationwas whether non-compliance of Rule 3(b) of the Madras Land AcquisitionRules which made obligatory for the Inquiring Authority to issuenotice to the acquiring body, rendered the acquisition invalid. TheSupreme Court held that the provisions of the said Rule made itobligatory for the Officer holding enquiry under Section 5(A) of theAct to issue notice to the body at whose instance, the land wasproposed to be acquired and therefore, non-compliance of the said rulerendered the acquisition invalid. Section 4(1) of the Act has not beeninterpreted in that case, and therefore the said decision does not inany way affect the ruling of this Court in Kempaiah's case 1984(1) KLJ521.
7. In Kempaiah's case, 1984(1) KLJ 521, the Division Bench pointedout that whereas the earlier part of Section 4(1) provided that thepreliminary notification shall be published in the Official Gazetteand shall also be published in the locality concerned the latter partof the same section only provided that the Deputy Commissioner mayalso cause the copy of such notification to be served on the owner orwhere the owner is not the occupier on the occupier of the landconcerned. After applying the relevant principles required to beapplied to find out as to whether a statutory provision is mandatoryor directory, the Division Bench concluded that the requirement ofissuing individual notice was not mandatory. We are in respectfulagreement with the view taken by the Division Bench.
8. The learned Counsel relied on the Judgment of the Bombay HighCourt in AJIT SINGH v. STATE OF MAHARASHTRA, AIR 1972 Bombay 1977 in which the BombayHigh Court had held that the service of individual notice wasmandatory. As can be seen from the said decision, the Government ofMaharashtra had framed Rules in exercise of the power under Section 55of the Land Acquisition Act and the Rule made it obligatory for theInquiring Authority to serve individual notice. There is no such ruleframed 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 theappellants. Further it should be pointed out that this decision wasconsidered by the Division Bench before coming to the conclusion thatthe requirement of individual notice was not mandatory. For the samereason the decision of the Gujarat High Court in MEGANBHAI VANASHIBHAIPATEL v. STATE OF GUJARAT & OTHERS, : AIR1976 Guj84 is also of no assistance for,the rule interpreted in that decision is the same which wasinterpreted by the Bombay High Court. In the circumstances, we are ofthe view that the acquisition in question cannot be set aside on theground that no individual notice had been served on theappellants.
9. The learned Counsel for the appellants next contended that therewas a difference in the description of the land acquired in the finalnotification and the preliminary notification. He submitted that inthe preliminary notification Sy. No. was given correctly and in thefinal notification a wrong Sy. No. had been given. We have looked intothe final notification, a photostat copy of which was produced by thelearned Counsel. There is no such misdescription. According to thefinal notification the plot belonging to the appellant was acquired.The northern, southern, eastern and western boundaries of the plotacquired are specified. It is not the case of the appellant that theland belonging to the petitioner does not fall within the fourboundaries specified therein. The learned Counsel submitted thatactually an award had been made for an area of 60 x 220' whereas thearea mentioned in the final notification was East to West - 40' andNorth to South - 200'. Even on the basis that in specifying area therehas been a mistake, i.e., instead of mentioning 60' x 220' it wasmentioned as 40' x 200', that mistake cannot constitute a ground forsetting aside the acquisition for the reason the entire plot belongingto the appellant with the four boundaries mentioned in thenotification has been acquired. It is also well settled position inlaw that wherever there is inconsistency between the area and theboundary the latter prevails. If we look into the boundaries specifiedin the final notification, the plot belonging to the appellant hasbeen acquired. Hence there is no substance in the objection.
10. In the other appeals, the learned Counsel for the appellantsurged two grounds:
(i) No opportunity of hearing was given; and (it) There was nocommunication to the appellants as to the submission of the report ofenquiry under Section 5A of the Act to the Government as requiredunder the provisions of the Act. As far as the first ground isconcerned, as can be seen from the order of the learned Single Judgeon a perusal of the record, it was found that everyone of them hadengaged Advocate, who had appeared before the Inquiring Authority andthe Advocate had been heard. Therefore, the said contention isuntenable.
11. As far as the second ground is concerned, no such ground wasurged before the learned Single Judge. Even in the petitions itappears that no such ground has been raised. The question as towhether there had been a communication about the Submission of thereport to the Government, is a question of fact and it cannot bepermitted to be raised in the appeals as the same was not raised inthe Writ Petitions.
12. In the result, we make the following order :
Writ Appeals are dismissed.