Authored By : Banerjee, Gilbert S. Henderson

Banerjee and Gilbert S. Henderson, JJ.

1. In this appeal, which arises out of a suit brought by thePlaintiff-Respondent, the Secretary of State for India in Council, against theDefendant-Appellant, for possession of a plot of land, which had been acquiredby the Plaintiff under the Land Acquisition Act (X of 1870), the only questionraised on behalf of the Appellant is, whether the Court of Appeal below wasright in holding that, under Section 16 of Act X of 1870, the land vestedabsolutely in the Government, free from all encumbrances, when no specialnotice, such as is required by Section 9 of the Act to be served on allpersons, known or believed to be interested, had been served on the Appellant.

2. The learned vakil for the Appellant contends that thisquestion should be answered in the negative, because the service of specialnotice on all persons known or believed to be interested is a conditionprecedent to the making of an award or of a reference to the Civil Court by theCollector and to his taking possession, after which alone can the land vest inthe Government under Section 16 of the Act and that as the Lower AppellateCourt has found that no such notice was served on the Appellant, who was knownto be interested in the land acquired, the subsequent proceedings in the landacquisition case must be deemed to have been ultra vires and inoperative inaffecting the rights of the Appellant. It is urged that, in a matter like this,the requirements of the Act should be strictly complied with and that theobjection as to the non-service of special notice is not a mere technicalobjection, as it is only after such notice that a person can become aware ofthe land acquisition proceedings and appear and see that the compensation isproperly assessed. And in support of this contention the cases of Herron v.Rathmines and Rathgar Improvement Commissioners (1892) A.C. 498, 532 and NorthShore Railway Company v. Pion (1889) L.R. 14 A.C. 612, Maxwell on theInterpretation of Statutes, p. 419 and Cripps on the Law of Compensation (3rdedition), p. 78, are relied upon.

3. On the other hand, the learned Senior Government Pleaderargues that the scheme of the Land Acquisition Act is to make the land acquiredvest absolutely in Government where possession has been taken after a bona-fideaward or reference by the Collector, even though all persons interested havenot had notice, the remedy of a person in the position of the Defendant beingone under Section 40 of the Act; and as the bona fides of the Collectorsproceedings, having regard to the facts found, cannot be called in question,the suit has been properly decreed.

4. After considering the facts found by the Lower AppellateCourt and the arguments on both sides, we are of opinion that the questionraised in this appeal, as stated above, must be answered in the affirmative.

5. The facts found by the Lower Appellate Court are that allthe preliminary steps, including the taking of possession, had been duly taken,with only this exception, that by some mistake the name of the Defendant wasomitted from the report of the Sub-Deputy Collector and no special notice wasissued to him, but that he had knowledge of the proceedings under the Act,though he did not appear, because he said, on being warned by a friend, that nonotice had been served on him. The bond fides of the proceedings under the Acthave not been and cannot be, questioned in this case.

6. These being the facts found, let us see what the bearingof the law is upon them. The Land Acquisition Act (X of 1870) evidentlycontemplates the valid acquisition of land and its absolute vesting inGovernment after a bond fide award or reference by the Collector has been madeand possession has been taken, notwithstanding that persons interested may nothave had notice. This is clear, not only from Section 40 of the Act, whichprovides the proper remedy for persons interested who have not had propernotice and also from Section 9 itself, which is relied upon by the other side :for the very provision that persons known or believed to be interested are to havenotice shows that persons interested who are not known or believed to beinterested may not have notice and yet the proceedings may go on validly Whereit is known or believed that a person is interested and yet the Collectorwilfully and perversely refuses to give him notice, there his proceedingscannot be considered bond-fide and should be held to be colourable andtherefore inoperative in vesting the land in the Government, as was held in thesomewhat analogous case of Luchmeswar Singh v. Chairman of the DarbhangaMunicipality I.L.R. (1890) Cal. 99 : L.R. 17 IndAp 90. But where through mereinadvertence or mistake a person interested has not had notice served upon him,the reason for the non-service is rather allied to ignorance of the fact of hisbeing interested than to any wilful perversity; and that was the case here. Ifthere was any wilful negligence on any side in this case, one might well say itwas on the side of the Defendant.

7. Although he was aware of the proceedings and was warnedby a friend that he ought to appear, he refused to do so and took his stand onthe ground that no notice had been served upon him. We are of opinion that sofar as the provisions of the Act go, there has been a substantial compliancewith them and that there is no sufficient reason for holding that the vestingof the land in the Government under Section 16 has not taken place.

8. As for the authorities cited, they are, in our opinion,inapplicable to this case. They relate to cases of privileges of an exceptionalcharacter to interfere with the property and rights of others being vested inprivate persons, or bodies of persons by statute law and in such cases thestrictest compliance with the requirements of the statute has been rightly heldto be a necessary condition precedent to the exercise of the powers andprivileges conferred. In cases under the Land Acquisition Act (X of 1870) theproceedings are required to be conducted and the powers and privilegesconferred are required to be exercised, not by any private or even public bodyof persons, but by a responsible officer of Government of the rank of aCollector and the chances of neglect to observe rules from interested motivesare reduced to the narrowest limits. That being so, the principle of law underlyingthe authorities cited could not apply, at least in its entirety, to the casebefore us. A distinction such as we have adverted to is observed by the EnglishCourts, as will appear from the observations of Vice-Chancellor Wood in thecase of North London Railway Company v. Metropolitan Board of Works (1859) 28L.J. Ch. 909 and the observations of Lord Cranworth in the case of Galloway v.Mayor and Commonality of London (1866) L.R. 1 H.L. 34 and we may also refer inthis connexion to Maxwell on the Interpretation of Statutes, pp. 421, 422 andCripps on the Law of Compensation, p. 21.

9. For all these reasons, we are of opinion that the decreeappealed against is correct and should be affirmed and that this appeal must bedismissed with costs.

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Ganga Ram Marwari vs.Secretary of State For India (20.03.1903- CALHC)