A. P. Sen j. -
(1.) This matter comes on a reference by Naik and Shiv Dayal jj. of the following questions : (1) Whether, under the facts and circumstances of the case, the notification under section 4 of the Land Acquisition Act was invalid, for the reason that the 'locality' where the land was situate was not specified therein ? (2) Whether, under the facts and circumstances of the case, the afore- said objection was open to the petitioner ? (3) Whether, in the event of the notification under section 4 of the Land Acquisition Act being invalid for the aforesaid reason, the land acquisition proceedings are liable to be quashed ? Their difference lies on the construction of the expression "land in any locality" appearing in section 4 (1) of the Land Acquisition Act, 1894 (hereinafter referred to as the "Act"). That section provides as follows : "4. (1) Whenever it appears to the appropriate Government that land in any locality is needed or is likely to be needed for any public purpose, a notification to that effect shall be published in the Official Gazette, and the Collector shall cause public notice of the substance of such notification to be given at convenient places in the said locality."
(2.) At the time when the reference was made, there was a conflict of opinion prevalent in this Court, regarding the actual requirements of that section. One was the view taken by Shrivastava and Tare jj. in Iftikhar Ahmed v. State of Madhya Pradesh (1959 M P L J Note 96- AI R 1961 MP 140) laying down that the failure of the Government to specify the locality where the land is situate or an omission on their part to give particulars of the land sought to be acquired, in a notification under section 4 (1), renders the notification invalid and has the effect of vitiating the land acquisition proceedings. The other was that taken by Dixit, C. J. and Pandey, J. in Hiralal Jain v. State of Madhya Pradesh (M. P. No. 155 of 1960, decided on 17-2-1961) Bhaiyalal Singh v. State of Madhya Pradesh (1961 M P L J Note 138) (M. P. 277 of 1960 decided on 6-7-1961). and Anand Kumar Jain v. State of Madhya Pradesh (1963 M P L J Note 132 = M. P. No. 205 of 1961 decided on 10-10-1961). holding that the notification under section 4 (1) being of an exploratory nature, the particulars of the land necessary for defining and identifying it need not be stated and, therefore, failure to furnish such particulars would not render the notification a nullity. The learned Judges, however, stated that the Government in a declaration under section 6(1) of the Act, by virtue of sub-section (2) thereof, must give sufficient particulars of the land as also the district or other territorial division in which it is situate.
(3.) The difference between sections 4 (1) and 6 (1) of the Act, is that whereas the former section refers to "land in a particular locality", the latter contemplates "a particular land" i. e. a specific piece of land. So far the construction of these sections is concerned, there can now be no controversy as regards this, in view of the clear pronouncement of their Lordships of the Supreme Court in Barkya Thakur v. State of Bombay (AIR 1960 SC 1203) and State of Madhya Pradesh and others v. Vishnu Prasad Sharma and others (1966 M P L J 995=AIR 1966 SC 1593.) In Barkya Thakur's case, the Supreme Court has observed : "The purpose of the notification under section 4 is to carry on a preliminary investigation with a view to finding out after necessary survey and taking of levels, and, if necessary, digging or boring into the sub-soil whether the land was adapted for the purpose for which it was sought to be acquired. It is only under section 6 that a firm declaration has to be made by Government that the land with proper description and area so as to be identifiable is needed for a public purpose or for a company." These observations were, no doubt, made by their Lordships while dealing with the question whether the Government are required to specify the nature of public purpose for which the lands are needed. In State of Madhya Pradesh and others v. Vishnu Prasad Sharma and others (supra), their Lordships have, however, dealt with the other aspect whether the Government in a notification under section 4 (1), should also give a description of the land. In dealing with that question, their Lordships stated : "The process of acquisition always begins with a notification under section 4 (1). That provision authorises the appropriate Government to notify that land in any locality is needed or is likely to be needed for any public purpose. It will be noticed that in this notification, the land needed is not particularised but only the locality where the land is situate is mentioned. * It has to be satisfied under section 6 after considering the report made under section 5-A that a particular land is needed for a public purpose or for a company and it then makes a declaration to that effect under section 6. Reading sections 4, 5-A and 6 together it seems to us clear that the notification under section 4 (1) specifies merely the locality in which the land is to be acquired and then under section 4 (2) survey is made and it is considered whether the land or part of it is adapted to the purpose for which it is required and maps are prepared of the land proposed to be taken. Then after objections under section 5-A have been disposed of the Government has to decide what particular land out of the locality specified in the notification under section 4 (1) it will acquire. It then makes a declaration under section 6 specifying the particular land that is needed. (Italics mine). It, accordingly, follows that a notification under section 4 (1) is merely exploratory or preliminary in nature and the exact area to be acquired need not be particularised at that stage. But it is otherwise with a declaration under section 6, which is issued after the Government have applied their mind to the exact area and location of the land which is needed for a public purpose and are, therefore, to be acquired. The acquired lands, accordingly, need to be particularised only in the declaration under section 6 of the Act. In view of this, there is no necessity for me to deal with the decisions of the other High Courts which have taken the same view. The view taken in Iftikhar Ahmed's case (supra) in so far as it lays down that an omission to give particulars of land in a notification under section 4 (1) renders the notification invalid and, therefore, vitiates the entire land acquisition proceedings, can no longer be accepted as laying down good law.;