' ZAFFAR HUSSAIN MIRZA, J.-The petitioner in this case seeks to call in question the land acquisition proceedings taken in respect of her land admeasuring 10-6 acres comprised in Survey Nos. 45, 185, 39-A, 39/B-1 39/B-2 & 39/B-3 in Deh Gujjo, City of Hyderabad.
2. On 21st October, 1978 the Additional Deputy Commissioner-I, Hyderabad, respondent No, 3 herein, acting as the Collector issued the preliminary Notification under section 4 of the Land Acquisition Act, 1894 (hereinafter referred to as the Act) published in Sind Government Gazette dated 2nd November, 1978 declaring that the land in question alongwith other land described therein was likely to be needed for a public purpose namely, "for construction of storage tank for Hyderabad Water Supply Scheme". Another Notification dated 25th October, 1978 published in the same Gazette was issued under sections 6 and 17 (4) of the Act, applying the urgency provisions for the acquisition of the land. Yet another Notification dated 25th October, 1978 published in the Sind Government Gazette dated 23rd November, 1978 was issued under sections 6 and 17 (4) of the Act, inter alia, correcting the area acquired from Survey No, 46 from 5 acres to 3 acres. Corrigendum Notification dated 9th November, 1978 published in the Sind Government Gazette, dated 23rd November, 1978 was issued correcting the area of Survey No, 46 in the aforesaid manner in the earlier Notification issued under section 4 of the Act. Similar Notification dated 20th November, 1978 was also separately issued in the same Gazette making the necessary corrections so far as the first-mentioned Notification under section 6 read with section 17 (4) of the Act is concerned.
3. The possession of the land was taken over on 25th November, 1978. The petitioner filed a provisional statement of claim on 30th November, 1978 before the Assistant Commissioner and Land Acquisition Collector, City Hyderabad, respondent No, 1 herein, wherein she also raised certain legal objections to the acquisition proceedings. Respondent No, 1 then issued notice to the petitioner dated 5th December, 1978 intimating to her that ah award had been made in respect of the acquired land.
4. Mr. Aminuddin, learned counsel for the petitioner first contended that in the facts of this case the land could only be acquired under the Hyderabad Development Authority Act, 1976 and the provisions of the Act are, therefore, not applicable. In this behalf counsel referred to Chapter 4 of the H. D. A. Act which provides for elaborate procedure for acquisition of land needed for any scheme undertaken by the said authority or for any other public purpose. The submission was that there was material difference in the provisions of the H. D. A. Act and the Act, and therefore, the provisions of this special Act would override the provisions of the general law contained in the Act.
The contention has not impressed us. In the Notification issued under section 4 of the Act referred to above, there is no reference to the land being needed for the purposes of the H. D. A. The petitioner has alleged in the petition that the land has been acquired for the said Authority. This allegation has, however, been denied by the Land Acquisition Officer who categorically states in his report called for by the Court that the land was acquired by the Government for specific public purpose and not for the H. D. A. The perusal of the Notification under section 4, of the Act will show that it clearly states that "the land is likely to be acquired to be taken by Government, at the public expense for a public purpose, namely acquisition of land on Eastern Bank of National Highway for construction of Storage Tank for Hyderabad Water Supply Scheme." Under section 15 of the H. D. A.
Act the Authority has been empowered by notification to declare any urban area to be a controlled area and under section 18 the Authority if directed by Government is to prepare specific schemes for a controlled area or part thereof in such form and such manner as may be prescribed. If the disputed land was acquired for the purpose of any scheme by the H. D. A. It has not been shown to us that the land is situated within the controlled area or that the same was required for any such scheme or other public purpose in the said area. Reference was made on behalf of the petitioner to the report submitted by the H. D. A. And it has been urged that the H. D. A. Has impliedly admitted in para. 4 thereof that the land has been acquired for it. We do not find any such admission implied or otherwise in the report. On the contrary, in para. 2 of the report it has been clearly asserted that the land in question has been acquired for construction of Water Storage Tanks for the population of Hyderabad City and that this Water Supply Agency is sometimes under the management of Hyderabad Municipal Committee and sometimes under that of the H. D. A. Subject to the supervisory control of the Government of Sind. There is thus no evidence that the Land has been acquired and vested in the H. D. A. At any rate, this is a question of tact and we are unable to embark _upon an investigation of such a question in the Constitutional jurisdiction.
5. It was next urged on behalf of the petitioner that the urgency provisions contained in section 17 of the Act are not applicable in respect of acquisition of land for a company and, therefore, the proceedings were bad in law inasmuch as the H. D. A. Is a "Company" within the meaning of section 3 (e) of the Act. Reliance was placed on Valji Bhai v. State of Bombay (1) and Sadruddin Suleman v.
J. H. Patwardhan (2). An elaborate argument was advanced on either side on the question whether the H. D. A. Will fall within the ambit of the definition of "Company". However, in the view that we have taken as to the first (1) A I It 1963 SC 1890 (2) AIR 1965 Born. 224 point urged before us, it is not necessary to enter into this question because clearly the acquisition has been made for a public purpose at public expense as clearly mentioned in the declaratory notification under section 4. It has been held, in the Indian Supreme Court case referred to above that where there is a clear declaration of the Government that the purpose of acquisition was a public purpose such declaration is final except where it is a colourable exercise of power. There is nothing to show that the powers were exercised mala fide and consequently the matter is concluded by the aforesaid unequivocal declaration contained in the said notification.
' It was finally urged that even the provisions of Land Acquisition Act have not been complied with.
In this behalf it was submitted that notice under section 9 of the Act was not served on the petitioner. The case of the respondents is that after publication of the notifications the required notices were issued under section 9 of the Act against all the owners of the lands including the petitioner. The copies of the notices dated 8th November, 1978 under section 9 (1) & (2) have been placed on record. The memorandum for affixation of these copies on the land and in the Office of the City Mukhtiarkar, Hyderabad have also been produced. So far as the special notice directly addressed to the petitioner under subsection (3) of section 9 of the Act is concerned, the photocopy of the original also dated 8th November, 1978 has been placed on record with the endorsement of the Tapedar to the effect that the said notice was affixed on the boundary of Survey Nos. 185 and 39-A belonging to the petitioner in presence of witnesses. It has been conceded by the learned Additional A. G. That the notice under section 9, in the aforesaid circumstances, cannot be deemed to have been duly served as required by section 9 (3) or (4) read with section 45 of the Act. Learned counsel for the petitioner has produced the copy of the judgment in C. P. L. A, No, 3/69 in the case of Prem v. Land Acquisition Officer dated 17th January, 1969 in which their Lordships of the Supreme Court have taken the view that the requirement of 15 days' notice under subsection (3) of section 9 is mandatory and not directory. However, as held in the aforesaid judgment the omission to serve a proper notice under the said provision does not affect the validity of the acquisition proceedings. At the most, therefore, the non-service of notice may render the award passed by the Land Acquisition Officer bad in law. It has, however, been pointed out to us that the petitioner has accepted the compensation awarded by the Land Acquisition Officer under protest and on his application a reference has been made to the Court under section 18 of the Act which is pending adjudication. The question therefore, is whether interference is called for in the Constitutional Jurisdiction when the petitioner has already invoked the statutory remedy. It was urged on behalf of the petitioner that the scope of the proceedings under section 18 is limited and that the award will not be liable to be challenged as invalid on the ground of non-service under section 9. But as pointed out by the learned Additional A.-G. This submission overlooks the provisions of subsection (3) of section 25 of the Act which provides as under :- "When the applicant has omitted for a sufficient reason (to be allowed by the Judge) to make such claim, the amount awarded to him by the Court shall not be less than, and may exceed, the amount awarded by the Collector."
' In Collector of Chingleputt v. Kadir Mohideen (1) the notification and notices did not clearly define the property ; the property sought to be acquired was not capable of identification ; and it was impossible to locate the exact portion which the Government ultimately intended to acquire. In addition to this the notice issued under section 9 was also defective, and it bore no date and it did not give 15 days' clear notice. It was held that "the claimant could not be said to have committed default in having failed to appear before the Collector in compliance with the notice" and that in any case there was sufficient cause within the meaning of section 25 (3). In Tara Prasad v.
Secretary of State (2) there was no clear 15 days' notice and, therefore, the notice was not valid in law. The learned Judges observed: "It is well-settled that where special provisions are made by the Legislature for compulsory acquisition of property belonging to a person, the provisions of the law must be strictly complied with." In Secretary of State v. Dinshaw (3), there was no proof that the Collector had called upon the applicant to specify the amount of his claim for injurious affection ; it was held that that was a "sufficient reason" for condoning the omission to make such claim. Thus it will be seen that the referee Court before whom the reference under section 18 is pending can award adequate compensation to the petitioner if it is shown to the Court that no special notice as required under subsection (3) of section 9 of the Act was served on the petitioner at least 15 days prior to the making of the award, without in any way being hampered by the amount awarded by the Collector. In the view that we have taken that illegality committed on account of non- compliance with the provisions of section 9 does not have the effect of vitiating the acquisition proceedings, all that remains to be done under the provisions of the Act is to determine and award a proper compensation to the petitioner. This in our view can be adequately done in the pending reference under section 18. We have, therefore, come to the conclusion that the remedy already invoked by the petitioner is efficacious in the circumstances of this case. No useful purpose will be served in quashing the award at this stage and remanding the proceedings back to the Collector, for, any award passed by him will again be subject to be reviewed by the Court under section 18.
We also find that such a course may tend to create complications as it seems that the common award was passed in respect of several claimants whose lands were acquired in the same Proceedings and the reference has been made in respect of three claimants including the petitioner jointly.
7. In the light of the aforesaid, we would dismiss this petition with no order as to costs.
(1) A 1 R 1926 Mad. 732
(2) AIR 1930 Cal. 471
(3) AIR 1933 Sind 21