A.P. Lavande, J.
By this appeal, the appellant takes exception to order dated 01.03.2002 passed by the Additional District Judge, Mapusa in Land Acquisition Case No. 117/1995 by which the Reference Court apportioned the compensation in favour of the respondent Nos. 1a, 1b and 1c and respondent Nos. 2a and respondent No. 4.
2. The Government of Goa acquired the land from survey No. 130 situated at Salem, Bicholim admeasuring 96,740 sq.mtrs. for rehabilitation project of persons affected by Tillari Irrigation Project at Salem, in Bicholim Taluka. Since there were rival claims to the compensation in respect of the acquired land, reference u/s 30 was made to the District Court at Panaji which was made over to the Additional District Judge, Mapusa. In Land Acquisition Case No. 117/1995, evidence was led on behalf of the applicants and Rama Govind Raut and Krishna Raut were examined. On behalf of the respondents Prakash Raut was examined. The reference Court upon appreciation of the evidence led by the parties held that the applicant No. 1 Rama Raut and applicant No. 4 Vishram Krishna Raut were entitled to 1/4th share and legal representatives of Arjun Raut were entitled to half share in the compensation awarded by the Land Acquisition Officer. The original applicant No. 2a, 2b and 2c and the original applicant No. 7 have filed the present appeal challenging the impugned order on various grounds.
3. At the outset, Mr. Shirodkar, learned Advocate appearing on behalf of the appellants submitted that the appellants were not properly served before the Reference Court and there were not aware of the pendency of the proceedings before the Reference Court and as such they have been deprived of opportunity of leading evidence before the Reference Court. The learned Counsel submitted that since the appellants were not served they could not take part in the reference proceedings and lead evidence in support of their claim. He further submitted that the records disclose that on behalf of the appellant No. 1a, 1b and 1c service was effected on one Madhuri Fati Raut who according to the bailiff was the wife of the appellant No. 1c. According to Mr. Shirodkar, Madhuri Raut is the not wife of appellant No. 1c. Mr. Shirodkar, further submitted that notice on behalf of the appellant No. 2 was served on the daughter of appellant No. 2 who was a minor. According to Mr. Shirodkar no service was effected either on Madhuri Raut or daughter of appellant No. 2. In any event, Mr. Shirodkar submitted that in terms of Section 45 of the Land Acquisition Act, which is mandatory service cannot be effected on a female member and on this ground alone, the impugned order is liable to be set aside as being without jurisdiction.
4. Per contra, Mr. Pangam appearing on behalf of the respondent Nos. 1, 1.a, 1.b, and 1.c, Mr. J. Vaz, appearing on behalf of the respondent Nos. 2.a, 3 a., 3 b., 5 a., 5.b and Mr. G. Nagvenkar, holding for Mr. S. R. Rivonkar, appearing on behalf of the respondent No. 4 submitted that Section 45 of the Act is not mandatory but directory and therefore, impugned order is not liable to be set aside on the ground of service on a female member of the family.
5. I have considered the submissions made by the learned Counsel for the parties and perused the record.
6. Since Mr. Shirodkar has placed reliance on Section 45 of the Act, it would be appropriate to reproduce the same. Section 45 reads as under:
45. Service of notices. - (1) Service of any notice under this Act shall be made by delivering or tendering a copy thereof signed in the case of a notice u/s 4, by the officer therein mentioned, and in the case of any other notice, by an order of the Collector or the Judge.
(2) Whenever it may be practicable, the service of the notice shall be made on the person therein named.
(3) When such person cannot be found, the service may be made on any adult male member of his family residing with him, and if no such adult male member can be found, the notice may be served by fixing the copy on the outer door of the house in which the person therein named ordinarily dwells or carries on business or by fixing a copy thereof in some conspicuous place in the office of the officer aforesaid or of the Collector or in the court-house, and also in some conspicuous part of the land to be acquired.
Provided that if the Collector or Judge shall so direct, a notice may be sent by post, in a letter addressed to the person named therein at his last known residence, address or place of business and [registered under Sections 28 and 29 of the Indian Post Office Act, 1898 (6 of 1898)], and service of it may be proved by the production of, the addressee''s receipt.
7. Records of the Trial Court disclose that on behalf of appellant No. 1a, 1b and 1c notice was served on Madhuri Raut and on behalf of the appellant No. 2, notice was served on his daughter. The question which arises therefore, for consideration is whether the impugned order is liable to be set aside on the ground that service of notice on the appellants was not effected in terms of Section 45 of the Act and whether Section 45 of the Act is mandatory.
8. Perusal of Section 45 makes if clear that service of notice in proceedings under Land Acquisition Act has to be made on the person named therein and if he is not found, service may be made on any adult male member of his family residing with him, and if no such adult male member can be found, the notice may be served by fixing the copy on the outer door of the house in which the person therein named ordinarily dwells or carries on business or by fixing a copy thereof in some conspicuous place in the office of the officer aforesaid or of the Collector or in the court-house, and also in some conspicuous part of the land to be acquired. Proviso 3 to Section 45 provides that if the Collector or Judge shall so direct, a notice may be sent by post, in a letter addressed to the person named therein at his last known residence, address or place of business and registered under Sections 28 and 29 of the Indian Post Office Act, 1898 and service of it may be proved by the production of, the addressee''s receipt. Thus, it is clear that u/s 45 of the Act the service cannot be effected on any female member of the addressee''s family residing with him since such a service is not contemplated u/s 45 of the Act. The record disclose that notices were served on female members although the actual service of notice is disputed by the learned Counsel for the appellants. In my considered opinion, Section 45 of the Act is mandatory and therefore, service effected on the appellants in the Reference is invalid in law. I am unable to accept the submissions made by the learned Counsel for the respondents that Section 45 is directory. Since the service of notices on the appellants is in clear breach of Section 45 of the Act, the impugned order is liable to be set aside.
9. For the reasons aforesaid, the impugned order is quashed and set aside and matter is remanded to the Reference Court for fresh disposal. The parties to appear before the Reference Court on 15.01.2009 at 10.00 a.m. The appellants are permitted to file written statement before the reference Court. The appellants waive notice before the Reference Court. Therefore, it is not necessary for the Reference Court to issue fresh notices to the appellants herein. The reference is of the year 1995. Therefore the Reference Court shall decide the reference expeditiously and in any case, on or before 30.12.2009. The appeal is disposed of in the aforesaid terms with not order as to costs.
