State of Punjab vs Jaswant Singh

D.S. Tewatia, J.(Oral)

The plaintiffrespondent Jaswant Singh sought permanent injunction restraining the defendantappellants State of Punjab and the SubDivisional Officer (Civil) as the Land Acquisition Collector, Gurdaspur, from interfering with his possession over the land measuring 4 kanals comprising in Khasra No. (plot) 195 situated in village Khojepure, Tehsil and District Gurdaspur, as entered in Jamabandi for the year 197273, inter alia, on the ground that the land acquisition authorities failed to comply with the mandatory requirement of subsection (1) of section 9 of the Land Acquisition Act, 1894, hereinafter referred to as the Act.

The trial Court basing itself on Jhandu Lal Budh Ram v. State of Punjab, A.I.R. 1959 Punjab 535, held the requirement of subsection (1) of section 9 as directory and dismissed the suit.

The appellate Court, following a later decision of this Court in Mani Ram v. State of Punjab, A.I.R. 1975 Punjab & Haryana 135, held that the compliance with the provision of section 9(1) of the Act was mandatory and, therefore, decreed the suit and allowed the relief prayed for.

The State in this second appeal has impugned the order of the lower appellate Court.

Mr. H.S. Riar, Deputy Advocate General, Punjab has, on the strength of Full Bench decision of this Court in State of Punjab v. Gurdial Singh, A.I.R. 1984 Punjab & Haryana 1, canvassed that the requirement of subsection (1) of section 9 of the Act is merely directory and not mandatory.

As for the question as to whether the requirement of subsection (1) of section 9 of the Act is directory or mandatory, it may be observed that the question before the Full Bench was as to whether or not the requirement of subsection (3) of section 9 of the Act was mandatory. The Full Bench, disagreeing with the view propounded in Mani Ram''s case (supra), held that the requirement of subsection (3) of section 9 was merely directory. It was so held because the Full Bench was of the view that primary provisions in regard to notice are subsections (1) and (2) of section 9 and subsection (3) of section 9 is additional to the provision of subsections (1) and (2) of section 9 is held to be mandatory, then the provisions of subsections (1) and (2) of section 9 would become redundant, that is, by implication, the Full Bench held that it is the provision of subsection (1) of section 9 that is mandatory and not subsection (3) thereof.

Both the Courts having concurrently held that there had been no compliance with the provisions of subsection (1) of section 9 of the Act, the next question, therefore, that arises for consideration is as to what is the effect of noncompliance with the mandatory provisions of subsection (1) of section 9.

In our opinion, as a result of noncompliance with the aforesaid mandatory provision, it is the land acquisition proceedings subsequent to the step envisaged in the provision of section 9 that have become illegal qua the plaintiffrespondent and not the proceedings taken prior to the steps envisaged under section 9. That means that the notifications issued under sections 4 and 6 of the Act are valid and any step taken in the wake of those notifications prior to the step envisaged under section 9 of the Act also would be valid, with the result that the proceedings taken subsequent to the step envisaged under section 9 of the Act including the passing of the award, shall be invalid qua the plaintiffrespondent.

In view of the fact that the notifications under sections 4 and 6 of the Act are valid, it would be open to the Land Acquisition authorities to initiate the award proceedings after complying with the provisions of section 9. In such a situation, the plaintiffrespondent would be entitled not to a permanent injunction restraining the defendantappellants from interfering with his possession for all times to come. In our opinion, he would be entitled to restrain the defendantappellants from interfering with his possession till such time a fresh award, in accordance with law, is given. We, therefore, modify the order of the lower appellate Court to the extent indicated. The appeal stands disposed of accordingly, with no order as to costs.