Navinchandra and others vs State of Ajmer and others

Nigam, J.C.

This is a petition for a writ of certiorari addressed to respondents 1 and 2 to cancel the award dated 12-7-1949 regarding the petitioners'' property described in the petition and for a writ of mandamus to all the respondents to restore possession of the said property to the petitioners and to determine the amount of compensation and to pay the amount to the petitioners on account of unlawful possession and for any other suitable orders which the Court thinks just and proper in the circumstances of the case.

The four petitioners are successors-in-interest of Pandit Vallabh Prasad who died on 29-7-1946. At the instance of the D.A.V. College Society, Ajmer, the Chief Commissioner, Ajmer, took steps to acquire 1 Bigha, 13 Biswas and 10 Biswansis of land in Khata No. 485 belonging to the petitioners along with other land. A notification under S. 4 was issued on 10-4-1943. The final notification under S. 6 was issued on 12-6-1946. The award of the Collector was given on 12-7-1949. The petitioners challenge the validity of these proceedings on the ground that no pro per notice was given to them as required by S. 9(3), Land Acquisition Act, 1894 (Act I of 1894). They also challenge the validity of the land acquisition proceedings on the ground that the notification under S. 6 was not properly published.

The petition has been contested and I have heard the learned counsel for the petitioners, the learned Government Pleader for respondents 1 and 2 and the learned counsel for respondent 3.

The learned counsel for the petitioners has urged that the notification under S. 6 dated 12-6-1946 was not a valid notification but on his attention being drawn to the Gazette notifications, the learned counsel has not pressed this point.

The point pressed by the learned counsel is that Vallabh Prasad died on 29-7-1946. 31-5-1946 was fixed in the cause and a notice addressed to Vallabh Prasad was served on 15/16-8-1946 on Kailash Chandra. The learned counsel urges that Kailash Chandra appeared on 31-8-1946 and told the Land Acquisition Officer that Vallabh Prasad, his father, was dead. The argument of the learned counsel is that the Land Acquisition Officer took no steps to find out the names of the heirs of Vallabh Prasad and to give notice to them as required by S. 9(3) of the Act. The petitioners were persons in occupation of the land being acquired.

The award was given on 12-7-1949. The learned counsel urges that the award should be set aside as the petitioners have been deprived of their property otherwise than by authority under law. The learned counsel''s argument is that as proper notice was not served under S. 9(3), the award cannot be treated as a valid award and therefore the Collector''s taking possession of the property in 1951 amounts to ''wrongfully depriving the petitioners of their property.

The learned Government Pleader has urged that as the award was made before the Constitution came in force on 26-1-1950, the question of validity of the award cannot be raised in these proceedings. The learned counsel for the petitioners has urged that as possession of the property was not taken till 1951 and the property did not vest in the Collector under S. 16, Land Acquisition Act, till he took possession; the petitioners were not deprived of their right and title in their property till after the Constitution came into force and as such this Court can look into the question of the validity of the award.

I have been referred to - Elbridge Watson Vs. R.K. Das, ; - Chamba Valley Transport Ltd. Vs. State of Himachal Pradesh, and - Emperor Vs. Jeshingbhai Ishwarlal, . I have also been referred to - Keshavan Madhava Menon Vs. The State of Bombay, . The portion to which I have been referred appears at p. 130, para 7 and reads:

........Such laws exist for all past transactions and for enforcing all rights and liabilities accrued before the date of the Constitution....

It is therefore clear that if any rights have accrued under the award which was given on 12-7-1949, then the petitioners will not get any right to any relief by the coming in force of the'' Constitution.

The learned counsel for the petitioners has urged that no right in property had passed to the Collector under the award till he took possession some time in 1951. The learned counsel refers to the provisions of S. 16, Land Acquisition Act. Section 16 reads:

When the Collector has made an award under S. 11, he may take possession of the land, which shall thereupon vest absolutely in the Crown, free from all encumbrances.

The learned counsel urges that the land does not vest in the Collector till he takes possession. On the other hand, the learned Government Pleader has urged that immediately after an award has been recorded the Collector is entitled to take possession of the property and even the payment of compensation is not essential. The learned Government Pleader has urged that under the award the Collector got a right to take possession and that he cannot be deprived of this right by the coming in force of the Constitution.

I am of opinion that the award gave the Collector the right to take possession, at any time he chose, of the property in question and that as this right had already vested in the Collector and the liability to hand over possession had been incurred by the petitioners, the date of the actual taking of possession is immaterial and the liability which the petitioners had incurred before the Constitution came into force cannot be removed in any writ under the Constitution. A writ under Art. 226 can relate only to a breach of the fundamental rights after the coming in force of the Constitution.

Accordingly, I am of opinion that it is not necessary to look into the question whether a bona fide mistake was committed by the Collector or whether he had been guilty of a wilful neglect or perverse omission in not issuing notices under S. 9(3) to the petitioners. I may here just add that the learned Government Pleader has urged that any mistake in the service of the notice will not invalidate the subsequent proceedings.

The learned Government Pleader has also, urged that actually no prejudice has been caused to the petitioners. They could request the Collector to make a reference under S. 18, Land Acquisition Act, arid then agitate the question of compensation. If they could prove that notice under S. 9(3) had not been properly served on them, the Government would not be able to claim the bar of S. 25(2) against the petitioners. The learned Government Pleader has urged that such a reference has been made to the District Judge at the request of the petitioners and those proceedings are still pending. The learned Government Pleader has with force argued that in the proceedings subsequent to the proceedings under 3. 9(3), Land Acquisition Act, the petitioners could only agitate the, question of compensation payable to them. This they can do even now. The earned Government Pleader has thus urged that no useful purpose would be served by quashing the proceedings already taken as the relief then available to the petitioners is available to them even now.

No other point has been pressed before me.

I, therefore, see no force in this petition and dismiss it with costs which I assess at Rs. 50/- payable to the Government Pleader.