State of Gujarat Vs. Musamiyan Imam
Haider Bux Razvi & ANR [1976] INSC 114 (14 April 1976)
SINGH, JASWANT SINGH, JASWANT RAY, A.N. (CJ)
BEG, M. HAMEEDULLAH
CITATION: 1977 AIR 594 1976 SCR 28 1976 SCC
(3) 536
CITATOR INFO :
C 1980 SC 367 (11) F 1988 SC1615 (7)
ACT:
Land Acquisition Acts. 1894-Secs. 4, 6 and
48-Whether cancelling Sec. 6 notification amounts to withdrawal from
acquisition-On cancellation of Sec. 6 notification whether Sec. 4 notification
gets exhausted-Whether second Sec. 6 notification can be issued-Acquisition for
a cooperative society if for a public purpose.
HEADNOTE:
The Government of Gujarat issued a
notification under section 4 of the Land Acquisition Act, 1894. The validity of
the said notification was challenged by the owners of the land. The Government
later issued a notification under section 6 of the Land Acquisition Act after
holding enquiry under section 5A. The owners of the land challenged the said
notification under section 6 by filing another Writ Petition. Thereafter the
award was made by the Land Acquisition Officer. The Government sanctioned a sum
of Re.
1/- towards cost of acquisition. The
acquisition was for the purpose of a Cooperative Housing Society. Later on, the
Government passed a resolution in supersession of the earlier resolution and
sanctioned a sum of Rs. 500/- toward cost of acquisition. The Government
considered section 6 notification to be illegal and invalid and cancelled the
same and issued a fresh notification under section 6 in respect of the same land.
The owner of the land filed a further Writ Petition challenging the
notification by which the earlier section 6 notification was cancelled and a
fresh section 6 notification was issued. The High Court dismissed the Writ
Petition against the first section 6 notification as infructuous. The High
Court allowed the other Writ Petition against the second section 6 notification
and quashed it on the ground that the cancellation of the first section 6
notification would in any event, tantamount to withdrawal from acquisition and
secondly since section 4 notification was exhausted by the first section 6
notification no subsequent notification under section 6 of the Act could
thereafter be issued.
Allowing the appeal by certificate ^
HELD: 1. Acquisition of land for Cooperative
Housing Society is for public purpose as laid down by this Court in Ratilal
Shankarbhai and Ors. v. State of Gujarat A.I.R. 1970 SC 984. [31-C]
2. The contention that the cancellation of
the first section 6 notification amounts to withdrawal from acquisition and no
subsequent notification under section 6 of the Act can thereafter be issued
without a fresh notification under section 4 of the Act cannot be countenanced
in view of the decision of this Court in Girdhari Lal Amratlal Shodan and Ors.
v. State of Gujarat reported in [1966] 3 SCR 437, when a notification under
section 6 of the Act is invalid the Government may treat it as ineffective and
issue in its place a fresh notification under section 6 and that nothing in
section 48 of the Act precludes the Government from doing so. The cancellation
of the earlier notification is only a recognition of the invalidity of that
notification and does not amount to withdrawal from acquisition. [31 C-D]
CIVIL APPELLATE JURISDICTION: Civil Appeals
Nos. 1870 and 1871 of 1970 and 1445 of 1971.
Appeal from the Judgment and Order dated
25-4-1969 of the Gujarat High Court in Special Civil Appeals Nos. 218/68 and
1441/66 respectively and 29 D. V. Patel and M. N. Shroff, for the appellants in
all the appeals.
S. T. Desai (In CA 1871), P. H. Parekh &
Manju Jetley for Respondents.
S. M. Jain, S. K. Jain and Inder Makwana for
Respondent 1 in CAs. 1871 and 1445.
P. K. Pillai for Respondent 2 and 3 in CA
1871.
The Judgment of the Court was delivered by
JASWANT SINGH, J. These three appeals Nos. 1870 of 1970, 1871 of 1970 and 1445
of 1971 by certificate granted by the High Court of Gujarat at Ahmedabad under
Article 133(1)(b) & (c) of the Constitution of India against its common
judgment and order dated April 25, 1969 shall be disposed of by this judgment.
The facts giving rise to these appeals are:
On May 20, 1961, the Government of Gujarat issued a notification under section
4 of the Land Acquisition Act 1894 (hereinafter referred to as 'the Act')
declaring that certain pieces of land in village Vasana, Taluka City, District
Ahmedabad specified in Schedule thereto were likely to be needed for a public
purpose viz. for construction of houses for members of Yogeshwarnagar
Co-operative Housing Society Limited, Ahmedabad. On June 18, 1962, respondent
No. 1 in Civil Appeal No. 1445 of 1971, owners of some pieces of the aforesaid
land filed Special Civil Application No. 564 of 1962 in the High Court of
Gujarat under Article 226 of the Constitution challenging the validity of the
aforesaid notification dated May 20, 1961 made under section 4 of the Act and
seeking to restrain the Government from proceeding further with the acquisition
proceedings contending inter alia that the land could not be acquired for the
benefit of the Company in which the public was not directly interested.
Interim injunction sought by the petitioner
in that petition having been refused, the Additional Special Land Acquisition
Officer, Ahmedabad, appellant No. 2 in these appeals proceeded to hold the
requisite enquiry under section 5A of the Act and submitted report to the
Government on a consideration whereof the latter issued a notification under
section 6 of the Act on April 29, 1963. The notification inter alia stated that
the lands mentioned in the Schedule thereto were needed to be acquired at the
public expense for the public purpose specified in column 4 of the Schedule to
the notification viz., the scheme undertaken by Shri Yogeshwarnagar
Co-operative Housing Society Limited with the sanction of the Government.
Notices under section 9(i) of the Act were served and the Special Land
Acquisition Officer after holding the requisite enquiry made an award on
December 21, 1963 determining the amount of compensation payable by the
Government to the owners of the land. On demand being made for possession of
land, respondent No. 1 in Civil Appeal No. 1870 of 1970, who is the owner of
some pieces of land sought to be acquired brought another Special Civil
Application 30 No. 1100 of 1963 under Article 226 of the Constitution in the
High Court challenging the aforesaid notification under sections 4 and 6 of the
Act and on his application, the High Court passed an interim order restraining
the Government from taking possession of the lands. On April 15, 1966, the
Government of Gujarat in supersession of the earlier resolution dated December
21, 1962 whereby it had sanctioned rupee one towards the cost of acquisition,
passed another resolution sanctioning contribution of Rs. 500/- towards the
cost of acquisition. Considering that the notification dated April 29, 1963,
issued by it under section 6 of the Act was illegal and invalid, the Government
of Gujarat by notification dated April 28, 1966, cancelled its earlier
notification dated April 29, 1963 issued under section 6 of the Act and issued
a fresh notification in respect of the same pieces of land under section 6 of
the Act on June 6, 1966. Respondent No. 1 in Civil Appeal No. 1445 of 1971 and
petitioner in Special Civil Application No. 564 of 1962 thereupon amended its
application with the leave of the Court so as to include a challenge to the
validity of the fresh notification under section 6 of the Act. The petitioner
in the aforesaid Special Civil Application No.
1100 of 1963 did not amend his application
but filed a fresh petition under Article 226 of the Constitution being Special
Civil Application No. 218 of 1968 challenging the fresh notification under
section 6 of the Act. Yet another petition under Article 226 of the
Constitution being Special Civil Application No. 1441 of 1966 was filed in the
High Court on November 20, 1966 by respondent No. 1 in Civil Appeal No. 1871 of
1970 challenging the validity of the fresh notification dated June 6, 1966
issued under section 5 of the Act. All these petitions were heard together.
While the High Court by common judgment dated April 25, 1969 dismissed petition
No. 1100 of 1963 as infructuous in view of the fresh notification under section
6 of the Act, it allowed the other three aforesaid petitions following its
earlier decision in Special Civil Application Nos. 316, 625 and 811 of 1965 and
quashed the fresh notification dated June 6, 1966 issued by the Government of
Gujarat under section 6 of the Act holding inter alia that the
"cancellation of the first section 6 notification would, in any event,
tantamount to withdrawal from acquisition and no subsequent notification under
section 6 of the Act could, thereafter be issued without a fresh notification
under section 4 of the Act." The appellants thereupon applied for and
obtained certificate referred to above. It is how these appeals are before us.
Although two important points were raised in
the aforesaid writ petitions viz. (1) whether the acquisition of land for
Co-opertive Housing Society is a public purpose and (2) whether the Government
could cancel the notification dated April 29, 1963 issued by it under section 6
of the Act and issue a fresh notification dated April 28, 1966 under the said
section of the Act, the first point does not survive and has rightly not been
canvassed before us in view of the decisions of this Court in Ratilal
Shankerbhai & Ors.
v. State of Gujarat & Ors.(1) Pandit
Jhandu Lal & Ors. v. The State of Punjab(2) and Ram 31 Swarup v. The
District Land Acquisition Officer, Aligarh & Ors.(1) In these cases, it has
been made clear that ordinarily the Government is the best authority to
determine whether the purpose in question is a public purpose or not;
it cannot be contended that a housing scheme
for a limited number of persons cannot be considered as a public purpose;
and the need of a section of the public may
be a public purpose.
The second contention raised on behalf of the
contesting respondents that the cancellation of the first section 6
notification amounts to withdrawal from acquisition and no subsequent
notification under section 6 of the Act can thereafter be issued without a
fresh notification under section 4 of the Act cannot be countenanced in view of
the decision of this Court in Girdharilal Amratlal Shodan and Ors. v. State of
Gujarat and Ors.(2) where it was categorically held that when a notification
under section 6 of the Act is invalid, the Government may treat it as
ineffective and issue in its place a fresh notification under section 6 and
that nothing in section 48 of the Act precludes the Government from doing so
and that the cancellation of the earlier notification is only a recognition of
the invalidity of that notification.
The following observations made therein are
apposite:
"Counsel for the appellants next
submitted that on issuing the notification dated July 18, 1961 (under section
6), the power of the State Government to issue a notification under section 6
was exhausted and the Government could not issue a fresh notification under
section 6. There is no substance in this contention.
The notification dated July 18, 1961 was invalid. By the issue of this notification, the Government had not effectively
exercised its power under section 6. In the circumstances, the Government could
well issue the fresh notification under section 6 dated August 14, 1964." No help can be derived by the contesting respondents from the decision of
this Court in State of Madhya Pradesh and Ors. v. Vishnu Prasad Sharma and
Ors.(3) which turned on another point. In that case after the issue of the
notification under section 4(1) of the Act, a number notifications in respect
of different items of land included in the locality specified in the
notification under section 4(1) of the Act were issued under section 6. The
following observations made in that case are pertinent:- "But as we read
these sections (viz. sections 4, 5A and 6) together we can only find that the
scheme is that section 4 specifies the locality, then there may be survey and
drawing of maps of the land and the consideration whether the land is adapted
for the purpose for which it has to be acquired, followed by objections and
making up of its mind by the Government that what particular land out of that
locality it needs. This is followed by a declaration under section 6 32
specifying the particular land needed and that in our opinion completes the
process....... At the stage of section 4 the land is not particularised but
only the locality is mentioned at the stage of section 6 the land in the
locality is particularised ........ The sequence of events from a notification
of the intention to acquire [section 4(1)] to the declaration under section 6
unmistakably leads one to the reasonable conclusion that when once a
declaration under section 6 particularising the area out of the area in the
locality specified in the notification under section 4(1) is issued, the
remaining non-particularised area stands automatically released".
Thus in view of the decision of this Court in
Girdharilal Amartlal Shodan's case (supra), the impugned judgment of the
Gujarat High Court cannot be allowed to stand. In the result, the appeals are
allowed and the said judgment of the High Court is quashed. The parties are
left to bear and pay their own costs in these appeals.
P.H.P. Appeals allowed.
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