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Second Appeal No. 3 of 1982, decided on 10th January, 1983.
‑‑ S. 4‑Notice on individual, service of‑Service of notice on individual not required for acquisition of land, but instead ratification to be published in official Gazette.
Ss. 5, 5‑A & 17(4)‑Provisions not mandatory=Functionaries in suitable cases can provide for exemptions from compliance with . these provisions.
Ss. 17 (4), 5 & 5 A‑Urgency in issuance of notification Contention that there was no urgency to issue notification of acquisition of land dispensing with requirements of Ss. 5 & 5‑A Held, making of road leading to shine which is frequently visited by thousands of people call for urgent action for construc tion of road for which land acquired sad as such contention not tenable.
Thirumalalah v. State of Mysore and another A I R 1963 Mys, 255 ref.
‑‑‑S. 4‑Acquisition of land‑Held, Zamindar would welcome construction of road through his land or in its vicinity because thereby value of his land rises.
Muhammad Jamil for Appellants.
Date of hearing: 10th January, 1983.
The facts leading to this Second Appeal are that the appellants/ plaintiffs own agricultural land bearing Survey Nos. 75, 80, 81, 82, 83 and 84 in Deh Katcho Marho in Talukn Shah Bunder, District Thatta. They claim to be in possession. In the vicinity of the said land is located the Dasgah of Shah Yakeek. Judicial notice can be taken of the fact that this Dargah is frequented by devotees, who often pay visits. It. is stated that this Dargah has been taken over by the Auqaf Department, and its affairs are being managed by the Chief Administrator, Auqaf.
The grievance of the appellants is that, out of the ' Survey numbers mentioned in the aforegoing paragraph, an area of 3. 9 acres has been acquired by the Government for construction of roads. In order to resist such acquisition, the suit, out of which the present Second Appeal arises, was filed before the Senior Civil Judge, Thatta, and registered as Suit No. 78/1980. In the plaint, the acquisition was challenged on the ground of non‑compliance with the provisions of Land Acquisition Act as well as the bona fides of the contemplated action. The relief, that was sought in the plaint, was for 'a deflection that acquisition proceedings were illegal, mala fide, void and without lawful authority. The plaintiffs/appellants also sought an injunction to restrain the respondents from implementing the scheme for construction of road leading to the said shrine.
On the pleadings of the parties, the following four issues were framed :‑
(1) Whether land acquisition proceedings for suit survey numbers by defendant No. 2 is illegal, mala fide, void and without lawful authority
(2) Whether the defendants are interfering with the peaceful possession in plaintiff's suit land
(3) Whether the suit is maintainable
(4) What should the decree be
On behalf of the plaintiffs/appellants Khalifa Haji Muhammad Haneef, and on behalf of the defendants/ respondents Syed Kadir Bux Shah, the Manager, Auqaf of Thattat were examined.
Mr. Muhammad Jamil has initially contended that there was non‑compliance with the provisions of sections 4, 5, 5‑A and 9 of the Land Acquisition Act. On a reading of the plaint, it would appear that the plaintiffs set up a case that notice under section 4 of the Land Acquisition Act had not been served on the plaintiffs/appellants. and, to such extent, paragraph 8 of the written statement recites that notice under section 4 of the Land Acquisition Act had been served on the plaintiffs/appellants by publication in the Government Gazette, dated 2nd December, 1979. A copy of the Gazette has been placed on the record, which shows that of the Land Acquisition Act had indeed been notice under section published section 4 of the Land Acquisition Act, no individual has to be given a notice, but a notification has to be published in to official Gazette, and the Collector has to cause public notice of the substance of such notification to be given at convenient places in the said locality It would thus be clear that .section 4 of the Land Acquisition Act does not require service of notice on the individual, who is likely to be affected by the proposed action of acquisition. There is still a further angle to this matter, which .emerges from paragraph 10 of the plaint itself. In such paragraph, it is stated that the plaintiffs/appellants filed objections under section ' S‑A of the Land Acquisition Act. This circumstance, by ' itself, shows that appellants knew about the proceed ings, for had they been ignorant of the same, they could not gave filed objections.
The next contention of the learned Advocate is by reference to sections 5 and 5‑A of the Land Acquisition Act. 1t is contended that the] provisions are of a mandatory nature, and non‑compliance has vitiate 'd all action. It seems the learned Advocate has overlooked the provision of subsection (4) of section 17 of the said Act. It would be useful t reproduce the said subsection. It reads as follows :‑
"In the case of any land to which, in the opinion of the Provincial Government, the provisions of subsection (1) or subsection (2) are applicable, the Provincial Government may direct that the provisions of section 5‑A shall not apply, and, if it does so direct, a declaration may be made under section 6 in respect of the land at any time after the publication of the notification under section 4, B subsection (1)."
It would thus appear that, in suitable cases, the relevant functionaries can provide for exemptions from compliance with the provisions of sections 5 and 5‑A of the Act. Such a notification has indeed been issued. Mr. Muhaodmad Jamil has, however, attached such notification on the ground that there was no urgency, and therefore the notification, dispensing with following the requirements of sections 5 and 5‑A of the Land Acquisition Act, was mala fide has relied on the case Thirur4alalah v. State of Mysore and another (A I R 1963 Mys. 255) a case from Indian jurisdiction. In the above case, observation have been mad to the effect that urgency, requiring exercise of power under section 17 (4) of the Land Acquisition Act, has to be established as any other fact. The learned Judges have not stated that evidence has to be led in order establish urgency, although this judgment may be construed C to be pronouncing an opinion that the existence of urgency was a justiciable question. Even if this test is applied to the present case, there can be no doubt whatsoever that making of a road, leading to a shrine which is frequented by thousands of persons, does indeed call for urgent action for construction of the road. On the other hand, the notification, invoking the powers under section 17 (4) of the Land Acquisition Act, on the face of it, states that the case was one of emergency. I see no force in this contention.
The next contention of Mr. Muhammad Jamil was that action was mala fide. In such regard, the argument is not easily assailable. In his evidence, the plaintiff had stated that his land had not been spoiled, or, damaged. He had further stated that he could not give the "value of the damage". by which words perhaps it was meant that he could not state damages in terms of money. On other hand, it is common knowledge that a zamindar would welcome construction of a road through his land, or, in the vicinity of his land, because, thereby, the value of the land rises. It is not easily understandable as to what is the grievance oft the plaintiffs/appellants.
On the points, there are concurrent findings of fact of the Court of the learned Senior Civil Judge and the District Judge.
I see no substance in this appeal, which I dismiss in limine.
M. Y. M. Appeal dismissed.
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