SHER SINGH Vs. STATE OF PUNJAB

JUDGEMENT

(1.) This order will dispose of Civil Writ Petition No. 13 of 1975, Sher Singh & others v. State of Punjab & others, and Civil Writ Petition No. 55 of 1975 Modan Singh & others v. State of Punjab & others, as the same notifications under Sections 4 and 6 of the Land Acquisition Act (hereinafter to be called as the Act) have been challenged in both these writ petitions.

(2.) A notification under Section 4 of the Act dated 22nd April, 1973 was published in the Punjab Government Gazette on 4th May, 1973, for the purpose of acquiring 30.85 acres of agricultural land in village Udekaran, Tehsil Muktsar, District Faridkot at public expense and for public purpose, namely, for the construction of 220 KV Sub Station at Muktsar by the Punjab State Electricity Board. In this notification the area and the khasra numbers of the land to be acquired are given in detail. It is admitted that the land referred to in this notification includes the land of the petitioners in both the writ petitions. Objections under Section 5-A of the Act were invited and those interested in filing the objections were required to do so within 30 days of the publication of the notification. The petitioners in both the writ petitions filed the objections. After considering the same, notification under Section 6 of the Act was published in the official Gazette on 22nd November, 1974. Both these notifications are marked as Annexures P.1 and P.2. The legality and validity of these notifications has been challenged in these petitions under Articles 226 and 227 of the Constitution. A number of pleas have been taken but the two main contentions raised are that the land was sought to be acquired for the Punjab State Electricity Board which is an autonomous body and as such is neither a private individual nor a company and, therefore, the land acquired for the said body cannot be deemed to be for a public purpose, secondly that the substance of the notification under Section 4 of the Act was not published in the locality as required under part(2) of Section 4 of the Act. Reply has been filed in both the writ petitions by the Land Acquisition Collector of the Punjab State Electricity Board in which both these contentions have been repelled. At the time of arguments it was urged by the learned counsel for the petitioners that the reply on behalf of the Electricity Board regarding the publication of substance of the notification in the locality is neither specific nor precise. It has not been disclosed as to on which date and in which locality the substance of the notification was published nor a copy of the substance which was published has been filed alongwith the reply. I directed Mr. Sandhu, learned counsel for the Electricity Board to supply the necessary information as to when the substance of the notification under Section 4 of the Act was published. According to the learned counsel the same was published on 5th June, 1973. According to second part of sub-clause (1) of Section 4 of the Act, the Collector is required to publish public notice of the sub-stance of the notification along with the notification at convenient places in the said locality. Under Section 5-A of the Act any person interested in the land is entitled to file objections within 30 days of the issue of the notification. In the present case, the substance of the notification was not only not published simultaneously alongwith the notification under Section 4 of the Act not immediately thereafter, but the same was published, according to the learned counsel for the Electricity Board on 5th June, 1973 i.e., after the expiry of 30 days. Regarding the publication of the substance of the notification and the mandatory nature of the provisions it was held by their Lordships of the Supreme Court in Narinderjit Singh v. State of U.P., 1973 AIR(SC) 552 as under :-

(3.) Thus if the substance of the notification under Section 4 of the Act is not published in the locality at all or the same is not published simultaneously alongwith the main notification or immediately thereafter, and in that case delay in publishing the same is not explained satisfactorily the entire proceedings after the notification are vitiated. The learned counsel for the respondents in both the petitions have only emphasised that in these cases objections under Section 5-A of the Act were invited and were filed by the petitioners. The same were considered and rejected by the Government. It was thereafter, that the notification under Section 6 of the Act was published. The argument is that according to the above-mentioned decisions the publication of the substance of the notification under Section 4 of the Act was interpreted to be mandatory so that the interested persons could have information about the notification and avail of the opportunity to file objections and as the petitioners availed of the opportunity to file objections and the same were considered by the Government, the petitioners should be deemed to have waived their objections regarding non-compliance with the provisions of Section 4(1) of the Act. In Narinderjit Singh's case the provisions of Section 5-A had been dispensed with in exercise of the powers under Section 17(4) of the Act and it was argued that as no objections were to be filed under Section 5-A of the Act, therefore, the non-publication of the substance of the notification was immaterial. This argument was repelled and it was held that no distinction can be made on the basis that objections were not required to be filed under Section 5-A. The ratio of the above two decisions is very clear. If the substance of the notification under Section 4 is not published in accordance with the Act the entire proceedings from the stage subsequent to the publication of the notification under Section 4 of the Act stand vitiated. In this view of the matter the fact that the petitioners in the present two writ petitions in fact filed objections which were filed much after the expiry of 30 days period because the substance itself had been published 30 days after, makes no difference so far as the acquisition proceedings are concerned. The mere filing of the objections by the petitioners cannot in the first instance be held that they waived their right to challenge the validity of the notification and the acquisition proceedings. Besides, it is a well settled principle of law that there can be no waiver against the statute. Under the circumstances the notifications Annexures P-1 and P-2 under Sections 4 and 6 of the Act are bereft of validity and legality and cannot be sustained.