Gujarat State Transport Corporation, Vs.
Valji Mulji Soneji & Ors [1979] INSC 98 (3 May 1979)
DESAI, D.A.
DESAI, D.A.
REDDY, O. CHINNAPPA (J)
CITATION: 1980 AIR 64 1979 SCR (3) 905 1979
SCC (3) 202
CITATOR INFO:
R 1980 SC 367 (13) F 1990 SC1232 (3)
ACT:
Land Acqusition Act, 1894, Sections 4 and
6-Validity of Section 6 Notification struck down by the Supreme Court after 13
years of legal battle intrtaties-Consequent to the decision second notification
under Section 6 issued on 10- 10-1967 after gving fresh notice under Section 5A
and personal hearing of the parties-Whether the second notification is hit by
the postulate that "every statutory power must be exercised
reasonably"-Effect of the Land Acquisition (AmenJment and Validation) Act
1967 introducing amendments to Section 4(2) aan proviso to Setion 6.
Legal Representatives to be brought on
record-Civil Procedure Code, 1908-Making an application under Order XXII Rule
10 instead of under Order XXXI Rule 4 is not correct.
HEADNOTE:
A suit (No. 1262/53) Challenging the
notification under Section 4 of the Land Acquisition Act dated 10-10-1952
issued by the former Government of Bombay and later another notification under
Section 6 of the Act dated 14-8-1953 (issued during the pendency of the suit),
notifying that the final plots Nos. 41. 42 and 43 were required for public
purpose viz. State Transport-was dismissed by the Trial Court on 28-1-1959. The
first and the second appeals having failed, the respondents came up to this
Court. This Court in its decision inter partes, Valji Bhai's case struck down
Section 6 notification on the ground that the acquisition being for the benefit
of a Corporation, though for a public purpose was bad because no part of the
compensation was to come out of the public revenue and the provisions of Part
VII of the Act had not been complied with.
After the bifurcation of the erstwhile State
of Bombay, the land acquisition proceedings came within the cognizance of
Gujarat State. The State by its letter dated 22-8-1966 decided to contribute
towards compensation a sum of Re. 1/- which was subsequently raised to Rs.
500/-. The Government felt that as long time has elapsed since the earlier
report under Section 5A was submitted by the Collector, a fresh enquiry should
be made. Accordingly the Additional Special Land Acquisition Officer issued a
notice dated 1-8-1966 intimating to the respondents that if they so desired
they might submit their further objections on or before 16-8- 1966. Complying
with this notice, the respondents submitted further objections on 31-8-1966 and
they were also given a personal hearing. After examining the enquiry report
submitted by the enquiry officer the Government of Gujarat issued a
notification under Section 6 on 10-10-1967.
The respondents questioned the validity and
legality of this notification in the writ petition filed by them on 14- 2-1968
on the only ground that it was issued more than 15 years after the date of
Section 4 notification. The High Court was of the opinion that if the power to
make a declaration under Section 906 6 is exercised after an unreasonable delay
from the date on which notification under Section 4 is issued such exercise of
power would be invalid and it accordingly struck down the notification under
Section 6 of the Act. Hence the two appeals one by the State of Gujarat and the
other by the Gujarat State Road Transport Corporation.
Allowing the appeals by certificate, the
Court ^
HELD: 1. The impugned section 6 notification
was issued within the prescribed period introduced by the 1967 Amendment Act
and, therefore could not be struck down on the only ground that the power to
issue second section 6 notification was exercised after an unreasonable and
unexplained delay. Section 6 notification, dated 10th October 1967, therefore
is valid and legal.[918G-H, 919A]
2. A combined reading of the provisions
contained in sub-section (2) of Section 4 with the one contained in the proviso
to sub-section (1) of Section 6 introduced by the Land Acquisition (Amendment
and Validation) Act, (Central Act 13 of 1967) with effect from 20-1-1967 would
make it clear that the Government would be precluded from making a declaration
under section 6 after the expiry of a period of three years from the date of
issue of a notification under Section 4 which may be issued after the Amendment
Act came into force. And in respect of those section 4 notifications which were
issued prior to the commencement of the Ordinance i.e. 20-1-1967, any
notification which is required to be issued under section 6 must be made within
a period of two years whereafter as a necessary corollary all s. 4
notifications issued prior to 20th January 1967 would stand exhausted and would
not provide either a source of reservoir for issuing s. 6 notification.
Consequently the mischief sought to be set at naught by the High Court by
reading by necessary implication in the scheme of ss. 4, 5A, and 6 the concept
of exercise of statutory power within a reasonable time has been statutorily
remedied. The apprehensions of the High Court that if not checkmated by
implying that such statutory power must be exercised within a reasonable time
to curb arbitrary exercise of power to the detriment of a citizen have been
taken note of by the legislature and fully met. Absence of any decided case on
the subject of which High Court took note could not permit an inference as has
been done by the High Court that in the absence of a decided case the
legislature would not remedy the possible mischief.
Legislature often does take note of a
possible abuse of power by the executive and proceed to nip it in the bud by
appropriate legislation and that has been done in this case.
There is now no more possibility of a gap of
more than three years from the date on which s. 4 notification is issued,
otherwise it would be invalid as being beyond the prescribed period. [916 G-H,
917 A-D] In the instant case, the notifications under section 4 was prior to
the commeneement of the ordinance. Therefore, the provision contained in
sub-section (2) of section 4 of the 1967 Amendment Act would be directly
attracted. The Government could, therefore, make a declaration within a period
of two years from 20th January 1967. The Government has in fact issued the
impugned notification under section 6 on 10th October 1967 i.e. within the
period prescribed by the Statute. [917 E-F] 907 3.When a period is prescuibed
for exercise of power it manifests the legislative intention that the authority
exercising the power within the prescribed time could not at least be accused
of inaction or dithering and, therefore, such exercise of power could not be
said to be bad or invalid on the only ground that there was unreasonable delay
in the exercise of the power. The very prescription of time inheres a belief
that the nature and quantum of power and the manner in which it is to be
exercised would consume at least that much time which the statute prescribes as
reasonable and, therefore, exercise of power within the time could not be
negatived on the only ground of unreasonable delay. [917H, 918 A-B] Therefore,
in this case, there was no unreasonable delay in exercise of power and hence
the exercise was neither bad nor invalid. [918B]
4. Once the legislature stepped in and
prescribed a sort of limitation within which power to issue notification under section
6 could be exercised, it was not necessary to go in search of a further fetter
on the power of the Government by raising the implication. [918F-G] In this
case, the High Court by implication read a fetter on the power of the
Government to issue s. 6 notification within a reasonable time after the issue
of s. 4 notification after observing that there was no express provision that
such power ought to be exercised within a reasonable time. In raising this
impliccation the High Court took into account the postulate that every
statutory power must be exercised reasonably and a reasonable exercise of power
implies its exercise within a reasonable time. Coupled with it two other
factors were taken into consideration such as the effect of issuing a s. 4 notification
on the rights and obligations of the owner of the land whose land is proposed
to be acquured; the right of the Government to unilaterally cancel s. 4
notification in the event of fall in prices; history of legislation; and
delayed issue of s. 6 notification would deny adequate compensation to the
owner.
But by the time the High Court examined this
matter the legislature had already introduced a provision by which the power to
issue s. 6 notification was to be exercised within the prescribed period of
time. At that stage there hardly arose a question of a search of the fetter on
the power of the Government ignoring to some extent the express statutory
provision. [918C-F]
5. In the case of death of a party to a
proceeding who is joined in his capacity as Karta of an undivided Hnndu family,
if the undivided Hindu family continues to be in existence the succeeding Karta
can be substituted for the deceased Karta of the family and that would be
sufficient compliance with Order XXII Rule 4 of C.P.C. [911D-E] In the insant
case an application made under Order XXII Rules 10 C.P.C. made after the
prescribed period of limitation and in order to avoid seeking condonation of
delay for setting aside abatement is not correct. [911E] [The Court, however,
overruled the objection on this ground since the L.rs. have already been
substituted].
CIVIL APPELLATE JURISDICTION: Civil Appeal
Nos. 2316/69 and 1598/70.
From the Judgment and order dated 14/17/18th
March, 1969 of the Gujarat High Court in S.C.A. No. 729/68.
908 R. H. Dhebar and M. N. Shroff for the
Appellants in C.A. 2316/69.
D. V. Patel, M. V. Goswami and Ambrish Kumar
for RR 1-5 in C.A. 2316/69 and RR. 1-4 in C.A. No. 1598/70.
The Judgment of the Court was delivered by
DESAI, J.-These two appeals by certificate under article 133(1)(c) of the
Constitution arise from a judgment rendered by the Gujarat High Court in
Special Civil Application No. 720/68, being a petition under article 226 of the
Constitution challenging the validity of a notification issued by the
Government of Gujarat on 10th october 1967 under section 6 of the Land
Acquisition Act, 1894 ('Act' for short). Civil Appeal No. 2316/69 is preferred
by the original respondent No. 2 Gujarat State Transport Corporation, and the
cognate Civil Appeal No.
1598/70 is preferred by the State of Gujarat,
the first respondent in the petition. As both the appeals arise from the same
proceedings and raise identical contentions they were heard together and are
being disposed of by this common judgment.
A notification under s. 4 of the Act was
issued by the former Governent of Bombay on 10th October 1952 notifying that
final plots 41, 42 and 43 were likely to be needed for a public purpose, viz.,
State Transport. The respondents who are tenants of different parcels of land
comprised in the aforementioned final plots objected to the proposed
acquisition. Soon after filing the objections under s. 5A of the Act the
respondents fild Civil Suit No. 1262/53 in the Court of Civil Judge, Second
Division, Ahmedabad, for a declaration that the notification under s. 4 was
illegal and ultra vires and for an injunction restraining the respondent State
from proceeding with the acquisition of the lands in possession of the
respondents. During the pendency of this suit the then Government of Bombay,
after considering the report submitted under s. 5A, made a declaration under s.
6 as per the notification dated 14th August 1953 declaring, inter alia, that
final plots 41, 42 and 43 were required for the purpose of State Transport. The
respondents amended their plaint adding a relief for quashing the notification
under s. 6. The suit filed by the petitioners was dismissed by the trial court
and first and second appeals did not meet with success. They carried the matter
to this Court and succeeded as per judgment reported in Valjibhai Muljibhai
Soneji & Anr. v. The State of Bombay (now Gujarat) & Ors.(1). As per
that judgment this Court decreed the plaintiff's suit which would imply that
this Court quashed both notifications under ss. 4 and 6. Reading the judgment
as a whole it 909 appears that the validity of s. 4 notification was upheld and
only the notification under s. 6 was struck down. In the mean timn on the
bifurcation of the erstwhile State of Bombay these land acquisition proceedings
came within the cognizance of Government of Gujarat and when the State
Government became aware somewhere in 1965 about the error in the decree, Review
Applications Nos. 11 and 12 of 1965 were made for correcting the decree. This
Court granted the applications and modified the decree on 13th September 1965.
The Government taking its clue from the
judgment of this Court which invalidated s. 6 notification on the ground that
the acquisition having been made for the benefit of a Corporation, though for
public purpose, is bad because no part of the compensation is to come out of
the public revenue and provisions of Part VII of the Land Acquisition Act have
not been complied with, decided as per its letter dated 22nd August 1966 to
contribute Re. 1/-, which was subsequently raised to Rs. 500/- towards payment
of compensation. The Government, however, felt that as long time has elapsed
since the earlier report under s. 5A was submitted by the Collector, a fresh
enquiry should be made Accordingly the Additional Special Land Acquisition
Officer issued a notice dated 1st August 1966 intimating to the respondents
that if they so desired the may submit their further objections by or before
16th August 1966. Complying with this notice the respondents submitted further
objections on 31st August 1966 and they were also given a personal hearing.
After examining the report submitted by the enquiry officer the Government of
Gujarat issued a notification under s. 6 on 10th October, 1967. The respondents
questioned the validity and legality of this notification in the petition filed
by them on 14th February, 1968.
Respondents questioned the validity of the
impugned s. 6 notification on the only ground that it was issued more than 15
years after the date of s. 4 notification and thus it had been issued after an
unreasonable delay and it was illegal and void. While this was the only
contention which found favour with the High Court, in reaching this conclusion
the High Court, after taking note of the fact that there was no express
provision in the Act requiring that the notification under s. 6 must be issued
within a reasonable time after issue of s. 4 notification, primarily relied
upon the postulate that every statutory power must be exercised reasonably, a
doctrine too finally entrenched in our jurisprudence to brook any refutation
which would assist in raising the implication that s. 6 notification must
follow within a reasonable time 910 after issue of s. 4 notification. The Court
also drew support from the scheme of ss. 4, 5A and 6 as well as the history of
the legislation. On behalf of the appellants it was pointed out to the High
Court that in view of the provisions contained in sub-s. (2) of s. 4 of the
Land Acquisition (Amendment and Validation) Act, 1967 ('Amendment Act' for
short), as well as the proviso to s. 6(1) also introduced by the same amendment
Act the situation as has arisen in this case is not likely to arise and the
apprehended mischief is not likely to be committed in future and, therefore,
the Court should not go in search of the fetters on the power of the Government
to issue s. 6 notification, in the absence of any express provision, by
implication that statutory power must be exercised within a reasonable time. It
was further submitted on their behalf that once the legislature has clearly
permitted a thing to be done within the time specified in the statute it would
be impermissible by a process of interpretation to reduce the statutory period
by implying a further fetter on the power of the Government and that would be
the effect if the contention on behalf of the respondents was accepted. In
other words, as the legislature has now provided that in respect of a
notification issued under s. 4 before the commencement of the Land Acquisition
(Amendment and Validation) Ordinance, 1967, no declaration under s. 6 shall be
made after the expiry of two years from the commencement of the aforesaid
Ordinance, and futher that in case of section 4 notification issued after the
commencement of the Ordinance a statutory limit of three years is fixed within
which declaration under s. 6 can be made, the apprehended arbitrary exercise of
power is thwarted and the Court should not further restrict or curtail the
power of the Government to issue notification under s. 6 within the time
prescribed by the statute.
The High Court was of the opinion that if the
power to make a declaration under s. 6 is exercised after an unreasonable delay
from the date on which notification under s. 4 is issued such exercies of power
would be invalid and accordingly struck down the notificatio under s. 6. Hence
these two appeals.
A preliminary objection was raised by the
learined counsel for the respondents in both the appeals contending that as the
appellants in both the appels failed to seek within the prescribed time
substitution of the heirs and legal representatives of respondent 5 who died on
8th March, 1970 during the pendency of the appeal in this Court, in the
circumstances of the case these appeals would abate as a whole. Undoubtedly, respondent
5 who is described in the cause title of the Memos. of Appeals as "Ramesh
Ramjibhai, Manager, Ramesh Restaurant, a joint hindu family business",
died on 8th March 1970. what 911 appears to have happened thereafter is that
applications were made by the appellants under Order 22, Rule 10, Code of Civil
Procedure, for bringing Shri Krishnakant Ramjibhai, Manager of Ramesh
Restaurant, a joint hindu family business, on record in place of deceased
respondent 5. According to the appellants the deceased respondent 5 had filed
the original petition in his capacity as manager of joint hindu family business
and on his death as the interest devolved upon the succeeding manager of the
joint hindu family business, applications under order 22, rule 10, C.P.C. were
made to bring the person on record on whom the interest devolved pending the
appeal. Mr. D. V. Patel took serious exception to the procedure adopted by the
appellants and there is some merit in this criticism. In fact, when Ramesh
Ramjibhai who filed the initial petition in his capacity as karta of the
undivided hindu family business died during the pendency of the appeal, proper
applications should have been made by the appeal, proper applications should
have been made by the appellants under O. 22, r. 4, to substitute heirs of
Ramesh Ramjibhai who was respondent 5 in the appeals before this Court. In case
of death of a party to a proceeding who is joined in his capacity as karta of
an undivided hindu family, if the undivided hindu family continues to be in
existence the succeeding karta can be substituted for the deceased karta of the
family and that would be sufficient compliance with Order 22, r. 4. What
appears to have been done is to make applications under O. 22, r. 10 and those
applications appear to have been granted subject to just exceptions. The
applications appear to have been made after the prescribed period of
limitation, and in order to avoid seeking condonation of delay for setting
aside abatement, O 22, r. 10 appears to have been invoked.
Mr. Patel is right in saying that this was a
device but in any event if proper applications were made under O. 22. r. 4 the
gentleman who became the karta of the undivided hindu family after the death of
the former karta could have been substituted on record for the deceased
respondent 5. In any event, succeeding karta of the undivided hindu family
having been brought on record though not strictly in accordance with law, we do
not propese to give any importance to this technical objection and overrule the
same.
In a decision inter partes, Valjibhai's case,
(supra) this Court struck down the first section 6 notification issued on 14th
August 1953 on the ground that the acquisition being for the benefit of a
Corporation, though for a public purpose, was bad because no part of the
compensation was to come out of the public revenue and the provisions of Part
VII of the Act had not been complied with. It would appear that s. 4
notification was issued on 10th October 1952 and within less than one year,
after completing the enquiry under s. 5A and the 912 examination of the report
by the appropriate Government, s.
6 notification was issued on 4th August 1953.
By any yard- stick it could not have been said that there was delay, much less
an unreasonable delay, in making the necessary declaration under s. 6 after the
issue of the notification under s. 4. The chronology of events that followed in
the wake of issuance of a notification under s. 6 dated 14th August 1953 would
wholly exonerate the Government of any charge of dithering or dilatoriness or
inaction. These events be noticed now so as to appreciate the submission on
behalf of the appellants that they cannot be accused of any inaction,
deliberate dilatoriness or dithering.
Soon after the issue of the notification
under s. 4 dated 10th October 1952 and even before the declaration was made
under s. 6 as per notification dated 14th August 1953 the respondents filed
Civil Suit No. 1262/53 challenging the notification under s. 4 and sought an
injunction restraining the then State of Bombay from proceeding with the
acquisition of the lands in possession of the respondents.
An interim injunction was sought but the same
was refused.
Thereafter came the notification under s. 6
dated 14th August 1953. It appears that thereafter the respondents amended the
plaint to add a relief for quashing and setting aside the notification under s.
6 also. It would thus appear that whatever was required to be done by the
Government for completing the proceedings of acquisition was undertaken and
finished within a period of less than one year from the date of the
notification under s. 4. The suit filed by the respondents was dismissed by the
trial court as per its judgment dated 28th January 1959. Both the notifications
were held valid and they were not found to suffer from any infirmity as
contended for and on behalf of the respondents.
The respondents carried the matter in appeal
to the District Court and this appeal was dismissed by the first appellate
court as per its judgment dated 28th September 1959. The respondents preferred
second appeal to the High Court but failed to carry conviction with the High
Court, with the result that the appeal failed and was dismissed on 1st August
1960. The respondents did not rest content with the dismissal of their second
appeal and applied for and obtained special leave of this Court under article
136 of the Constitution. The appeal of the respondents by special leave
succeeded as per judgment rendered by this Court on 8th May 1963.
The question is whether there was any delay
much less unreasonable delay on the part of the State Government in taking
follow up action after issuing notification under s.
4. The State Government had actually taken
the follow up action expeditiously within less than a year when on 14th August
1953, s. 6 notification was issued. Even 913 before s. 6 notification was
issued the respondents filed the suit and went on preferring appeals. They
succeeded for the first time in this when this Court allowed their appeals on
May 8, 1963. Till then the Government could not be accused of any inaction or
delay in taking the follow up action. What was the Government expected to do
during the time the respondents went on preferring successive appeals ? Was the
Government expected, even though it succeeded in the trial court and first and
second appellate courts to foresee in advance that at some stage by some court
in the pyramid of appeals its notification under s. 6 would be found to be
ineffective and forestall such a decision by issuing another s. 6 notification
ex major cautela ? If the Government succeeded in three courts and was assured
by three courts that both its notifications under ss. 4 and 6 were valid and
effective, it is difficult to appreciate the observation of the High Court that
when the Government issued the first s. 6 notification it was ineffective
exercise of power under s. 6 and the Government wrongly went on contending that
it was a valid exercise of power. This criticism is not well merited. There
would have been some legitimacy in this criticism of the stand of the
Government if the Government had lost in the first court and went on filing
successive appeals even if each court went on holding the notification
ineffective. The reverse is the position. The Government went on succeeding and
the courts went on upholding the notification. There was no alternative with
the Government but to go on defending its action before the courts to which it
was dragged by the respondents after their successive failures. In this background
the question was posed by the High Court: Can the Government then contend, when
it is found to be wrong by the highest court in the land, that the delay in the
exercise of the power under s. 6 occasioned by its own wrong stand should be
regarded as reasonable ? and answered by it by saying that if the Government
had not persisted in wrongly asserting the validity of the first s. 6
notification and accepting its invalidity, had cancelled it, the delay in the
effective exercise of the power under s. 6 could have been avoided. This answer
is unfortunately not borne out by the events succeeding the issuance of the
first s. 6 notification. Not only the Government stand was not found to be
wrong but by three courts it was found to be correct. It is this Court in the
last appeal found s. 6 notification invalid. Could the Government be expected
to speculate in advance that ultimately it may fail to convince this Court
though it had convinced three other courts and, therefore, right at the time of
institution of the suit in the court, concede the contention of the respondents
and cancel the first s. 6 notification and issue a second one ? There was no
guarantee that the second one would not have been challenged and obviously
there was 914 no assurance that some defect may not be found by some court even
in the second s. 6 notification. The Government cannot be put on the horns of a
dilemma. Therefore, we find it difficult to agree with the High Court that
having adopted a wrong stand and thus taken about 11 years the Government
cannot now be permitted to urge that the delay so occasioned should not be
regarded as unreasonable. In fact the Government had practically little or no
option but to support the decisions of the Courts which were in its favour till
this Court for the first time found some defect in its notification under s. 6.
Any other view may lead to a starting result that every litigant before it can
explain the delay on the ground of being led from court to court must foresee a
possible error that the hierarchy of courts may at some stage notice and
rectify its stand in advance.
It would be nothing short of a speculative
approach which may ill-suit any litigant and more so the Government.
The High Court was further of the opinion
that even if there was some explanation for the delay from 14th August 1953 to
8th May 1963, there was no explanation for the delay in making the review
application in the beginning of 1965 before the Supreme Court and that this
period of one year and 9 months remains totally unexplained. In this context it
may be advantageous to state that the respondents in the earlier round of
litigation had challenged both the notifications under ss. 4 and 6 had lost
before the first three courts. This Court while allowing the appeal by its
judgment dated 8th May 1963 passed the final order as under:
"We, therefore, allow the appeals and
decree the suits of the appellants with costs in all the Courts."
Literally implemented, the decretal portion would mean that both s. 4 and s. 6
notifications were struck down.
Reading the body of the judgment it clearly
transpires that this Court upheld the validity of the notification under s. 4.
When this inconsistency between the judgment and the decree came to the notice
of the Government, Review Petitions Nos. 11 and 12 of 1965 appear to have been
filed in the year 1965, and these petitions were allowed by this Court as per
its order dated 13th September 1965 by deleting the decretal portion of the
judgment as extracted hereinabove and substituting it in the following words:
"and decree the suit for permanent
injunction restraining the respondents from proceeding further with the land
acquisition proceedings under the said notification issued under s. 6(1) of the
Act with costs in all the courts".
915 The High Court was of the opinion that
the Government took a long time of one year and 9 months in ascertaining this
inconsistency between the decretal portion of the judgment and the main body of
the judgment and there was delay in moving the review applications. In this
connection a reference to the affidavit of Mr. D. K. Motwani, Secretary to the
Gujarat State Road Transport Corporation for whose benefit the acquisition was
made, as well as the affidavit of Shri S. R. Pardhan, Under Secretary to Government
of Gujarat, would show that after the copy of the judgment was received and it
was examined to ascertain what further steps were required to be taken to
complete the process of acquisition consistent with the judgment of the Supreme
Court, the error was discovered and then the learned advocate was instructed to
file review applications. This delay of a year and few months in the context of
the facts in this case cannot be said to be unreasonable.
The third stage where the High Court found
the delay in taking the follow up action was after the grant of review
application and before the impugned notification dated 10th October 1967 was
issued. This Court allowed the review applications on 13th September 1965.
Thereafter the Government directed a fresh enquiry under s. 5A. This was done
in fairness to the respondents, though Mr. D. V. Patel learned counsel for the
respondents was rather critical of this fairness of the Government inasmuch as
he said that there was no necessity for a fresh enquiry. Earlier enquiry under
s. 5A was in 1952. By this time nearly 15 years had elapsed since the enquiry.
If the Government in the backdrop of these facts considered it fair and just to
order a fresh enquiry to give the respondents an opportunity to file fresh objections,
the Government cannot be accused of dithering or whiling away precious time on
what was described as a futile exercise. This second enquiry under s. 5A was
held after giving an opportunity as per notice dated August 1966, to file
objections which in fact were filed on August 31, 1966, and then a notice dated
30th December 1966 was served upon the respondents calling upon them to appear
for personal hearing on 12th January 1967. The enquiry was adjourned at the
request of the respondents 9 times as set out in the affidavit of Shri S. R.
Pardhan. The enquiry was over on 13th April 1967. During the course of personal
hearing the respondents appeared through their advocates Sarvashri K. M. Vyas,
A. L. Shah, V. R. Bhatt and N. D. Pandey. The last of the submissions appear to
have been made on 13th April 1967.
Thereafter the enquiry officer submitted his
report and the Government took the prompt action of issuing the impugned
notification on 10th October 1967. Even here the High Court found a further
unexplained delay after 13th September 1965 till 10th October 916 1967 when the
impugned notification was issued. The High Court possibly overlooked the
affidavit of Shri S. R. Pradhan when it observed that there was no satisfactory
answer to the question posed by it, in the affidavit filed on behalf of the
respondents. With respect, it is not possible to subscribe to this view of the
High Court in view of the facts clearly set out hereinabove. It, therefore,
unmistakably transpires that in the facts and circumstances of this case there
was no delay, though apparently there appears a time lag of nearly 15 years
between s. 4 and s. 6 notifications because the events in the interregnum
clearly made it impossible for the Government to issue a second s. 6 notification
when it had already issued a first s. 6 notification within a period of less
than one year from the date of the issue of the s. 4 notification and the
validity of which was beyond reproach till May 6, 1963.
Assuming that the High Court was right in rejecting
the explanation preferred by the Government for the delay in issuing the second
s. 6 notification, would it still be fair to hold that there was an
unreasonable delay in issuing the second s. 6 notification in view of the
specific provision contained in sub-s. (2) of s. 4 of the 1967 Amendment Act
which provides that notwithstanding anything contained in clause (b) of sub-s.
(1), no declaration under s. 6 of the principal Act in respect of any land
which has been notified before the commencement of the Land Acquisition
(Amendment & Validation) Ordinance, 1967, under sub-s. (1) of s. 4 of the
principal Act, shall be made after the expiry of two years from the
commencement of the Ordinance. The Ordinance came into force on 20th January
1967. Simultaneously a proviso was added to sub-s. (1) of s. 6 in the following
terms:
"Provided that no declaration in respect
of any particular land covered by a notification under s. 4 sub-s. (1)
published after the commencement of the Land Acquisition (Amendment & Validation)
Ordinance, 1967, shall be made after the expiry of three years from the date of
such publication".
A combined reading of the provisions
contained in sub-s. (2) of s. 4 with the one contained in the proviso to sub-s.
(1) of s. 6 introduced by the Amendment Act would clearly put an end to the
unsatisfactory situation which troubled the High Court in this case. In view of
the statutory provision noticed herein the Government would be precluded from
making a declaration under s. 6 after the expiry of a period of three years
from the date of the issue of a notification under s. 4 which may be issued
after the Amendment Act came into force. And in respect of those s. 4
notifications which were issued perior to the 917 commencement of the Ordinance
hereinabove noted on 20th January 1967 any notification which is required to be
issued under s. 6 must be made within a period of two years whereafter as a
necessary corollary all s. 4 notifications issued prior to 20th January 1967
would stand exhausted and would not provide either a source or reservoir for
issuing s. 6 notification. Consequently the mischief sought to be set at naught
by the High Court by reading by necessary implication in the scheme of ss. 4,
5A and 6 the concept of exercise of statutory power within a reasonable time
has been statutorily remedied. The apprehensions of the High Court that if not
checkmated by implying that such statutory power must be exercised within a
reasonable time to curb arbitrary exercise of power to the detriment of a
citizen have been taken note of by the legislature and fully met.
Absence of any decided case on the subject of
which High Court took note could not permit an inference as has been done by
the High Court that in the absence of a decided case the legislature would not
remedy the possible mischief.
Legislature often does take note of a
possible abuse of power by the executive and proceed to nip it in the bud by
appropriate legislation and that has been done in this case.
There is now no more possibility of a gap of
more than three years between s. 4 and s. 6 notifications because any
declaration made after the expiry of a period of three years from the date on
which s. 4 notification is issued would be invalid as being beyond the
prescribed period.
These newly inserted provisions were brought
to the notice of the High Court. Now, as pointed out earlier, the Ordinance
came into force on 20th January 1967. The notification under s. 4 in this case
was prior to the commencement of the Ordinance. Therefore, the provision
contained in sub-s. (2) s. 4 of the 1967 Amendment Act would be directly
attracted. The Government could, therefore make a declaration within a period
of two years from 20th January 1967. The Government has in fact issued the
impugned notification under s. 6 on 10th October 1967, i.e. within the period
prescribed by the statute.
The question then is: when a statute confers
power and prescribes time within which it can be exercised, could it ever be
said that even though the power is exercised within the statutory period yet
the Court can examine the question of delay and record a finding that there was
an unreasonable delay in exercise of the power and, therefore, the exercise of
power is bad ? This approach would defeat the very purpose for prescribing a
sort of a period of limitation on exercise of power. When a period is
prescribed for exercise of power it manifests the legislative intention that
the authority exercising the power 918 within the prescribed time could not at
least be accused of inaction or dithering and, therefore, such exercise of
power could not be said to be bad or invalid on the only ground that there was
unreasonable delay in the exercise of the power. The very prescription of time
in heres a belief that the nature and quantum of power and the manner in which
it is to be exercised would consume at least that much time which the statute
prescribes as reasonable and, therefore, exercise of power within that time
could not be negatived on the only ground of unreasonable delay. Therefore, in
this case it is difficult to agree with the High Court that there was an
unreasonable delay in exercise of power and hence the exercise was either bad
or invalid.
The High Court by implication read a letter
on the power of the Government to issue s. 6 notifications within a reasonable
time after the issue of s. 4 notification after observing that there was no
express provision that such power ought to be exercised within a reasonable
time. In raising this implication the High Court took into account the
postulate that every statutory power must be exercised reasonably and a
reasonable exercise of power implies its exercise within a reasonable time.
Coupled with it two other factors were taken into consideration such as the
effect of issuing a s. 4 notification on the rights and obligations of the
owner of the land whose land is proposed to be acquired;
the right of the Government to unilaterally
cancel s. 4 notification in the event of falling prices; history of
legislation; and delayed issue of s. 6 notification would deny adequate
compensation to the owner. But by the time the High Court examined this matter
the legislature had already introduced a provision by which the power to issue
s. 6 notification was to be exercised within the prescribed period of time. At
that stage there hardly arose a question of a search of the fetter on the power
of the Government ignoring to some extent the express statutory provision.
Therefore, while appreciating the anxiety of
the High Court we are of the opinion that once the legislature stepped in and
prescribed a sort of period of limitation within which power to issue
notification under s. 6 could be exercised it was not necessary to go in search
of a further fetter on the power of the Government by raising the implication.
It thus appears to be satisfactorily
established that the impugned s. 6 notification was issued within the
prescribed period introduced by the 1967 Amendment Act and, therefore, could
not be struck down on the only ground that the power to issue second s. 6
notification was exercised after an unreasonable and unexplained delay. This
being the only infirmity found by the High Court to which we are not able to
919 subscribe, it must be held that the second s. 6 notification dated 10th
October 1967 is valid and legal.
Accordingly both these appeals succeed and
are allowed and the decision of the High Court is set aside and Special Civil
Application No. 729/68 filed by the respondents is dismissed but in the
circumstances of the case, with no order as to costs.
S.R. Appeals allowed.
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