State of Gujarat Vs. Bhogilai,
Keshavlal & ANR [1979] INSC 248 (27 November 1979)
SEN, A.P. (J) SEN, A.P. (J) SHINGAL, P.N.
CITATION: 1980 AIR 367 1980 SCR (2) 284 1980
SCC (1) 556
CITATOR INFO:
F 1988 SC1615 (7)
ACT:
Land Acquisition Act, 1894, Sections 4 &
6-Scope of.
HEADNOTE:
The first respondent owned certain Land
forming part of a town planning scheme, situated within the city limits. At the
request of the second respondent, a Corporative Housing Society, the State
Government issued a Notification under section 4 of the Act on August 3, 1960
stating that the land was likely to be needed for a public purpose and it was
followed by a further notification of the State Government under Section 6 of
the Act dated August 21, 1961 that the land was to be acquired at the expense
of the Cooperative Housing Society for the public purpose specified in column 4
of the Schedule to the notification. The entire expense of the acquisition was
to be borne by the second respondent.
The first respondent moved the High Court
under Article 226 of the Constitution challenging the validity of the
notification under section 6 of the Act. During the pendency of the Writ
Petition, the appellant by a notification dated May 27, 1963 cancelled the
earlier notification under section 6 and issued a fresh notification. The High
Court struck down the second notification dated September 10, 1964 issued under
section 6 of the Act. In the appeal to this Court, on the question of the
validity of the 2nd notification dated September 10, 1964.
HELD: (i) The High Court was in error in
striking down the second notification under section 6 of the Act issued on
September 10, 1964.
(ii) This Court in Valjibhai Muljibhai Soneji
v. State of Bombay [1964] 3 S.C.R. 686 has held that the Government has no
power to issue a notification for acquisition of land for a public purpose,
where the compensation is to be entirely paid by a company. [287 C-D] In the
instant case the first notification issued by the Government for acquisition of
land for a public purpose at the expense of the second respondent, the
cooperative society was therefore, invalid and the Govt. was justified in
issuing the second notification under section 6 after removing the lacuna by
providing for acquisition of the land for public purpose, at public expense.
[287 D-E] (iii) The acquisition of land for cooperative housing society is a
public purpose. The Govt. is the best judge to determine whether the purpose in
question is a public purpose or not. It cannot be said that a Housing Scheme
for a limited number of persons cannot be construed to be a public purpose.
When a notification under section 6 of the Act is invalid, the Govt. may treat
it as ineffective and issue a fresh notification under section 6 of the Act 2nd
nothing in section 48 of the Act precludes the Government from doing so. [291
C-E] 285 Girdharilal Amratlal Shodan & Ors. v. State of Gujarat
Madhya Pradesh & Ors. [1964] 6 S.C.R.
636, Pandit Jhandu Lal & Ors. v. The State of Punjab & Ors. [1961] 2
S.C.R. 459 Ratilal Shankarbhai & Ors. v. State of Gujarat & Ors. A.I.R.
1970 S.C. 984, Ram Swarup v. The District
Land Acquisition Officer, Aligarh & Ors. A.I.R. 1972 SC 2390, referred to.
(iv) In the instant case, the Respondent had
not taken any ground in the Writ Petition with regard to the delay in the
issuance of the second notification. The High Court was therefore, not
justified in observing that "the appellant had not explained the delay by
filing any affidavit." If there was no ground taken, there could be no
occasion for filing of any such affidavit. [292 B-C] (v) There is nothing in
the Act which precludes the Govt. from issuing a fresh notification under s. 6
of the Act if the earlier notification is found to be ineffective.
The delay of one year and four months between
the date of cancellation and the issue of the second notification cannot be
regarded to be unreasonable. [292 E-F] Gujarat State Transport Corpn. v. Valji
Mulji Soneji [1979] 3 S.C.R. 202, referred to D & CIVIL APPELLATE
JURISDICTION: Civil Appeal No. 1479 of 1971.
From the Judgment and Order dated 25-4-1969
of the Gujarat High Court in SCA No. 271/65.
G.A. Shah, N.S. Pande and M.N. Shroff for the
Appellant.
P.R. Mridul, Vimal Dave and Miss Kailash
Mehta for Respondent No. 1.
I. N. Shroff and H. S. Parihar for Respondent
No. 2.
The Judgment of the Court was delivered by
SEN, J.-This appeal on certificate from a judgment of the Gujarat High Court
raises a question as to the validity or otherwise or a fresh notification
issued by the Government of Gujarat under s. 6 of the d Acquisition Act, 1894,
consequent upon an earlier notification under s. 6 of the Act being discovered
to be invalid.
The first respondent in this case owned
certain land bearing Final Plot No. 38 forming part of Town Planning Scheme No.
III (Ellis-bridge) situate within the city of Ahmedabad. At the request of the
second respondent Sri Ayodhya Nagar Co-operative Housing Society Ltd.,
registered under the Bombay Co-operative Societies Act, 1925, now deemed to be
registered under the Gujarat Co-operative Societies Act, 1961, formed with the
object of enabling its members to construct houses, the State Government on
August 3, 1960 issued a notification 286 under s. 4 stating that the land was
likely to be needed for a public purpose. This was followed by a notification
of the State Government dated August 21, 1961 under s. 6 of the Act stating
that the land was to be acquired at the expense of Sri Ayodhya Nagar
Cooperative Housing Society Ltd. for the public purpose specified in column 4
of the schedule annexed thereto. The public purpose specified in column 4 of
the schedule was 'For construction of houses for Sri Ayodhya Nagar Co-operative
Housing Society Ltd., Ahmedabad. The entire expense of the acquisition was to
be borne by the second respondent, i.e., the Co-operative Housing Society.
The first respondent moved the High Court
under Art. 226 of the Constitution challenging the validity of the notification
under s. 6 on the ground that the acquisition of the land for a public purpose
at the expense of the second respondent was legally invalid. On December 4,
1961 the High Court issued an ad interim injunction restraining the appellant
from proceeding with the acquisition proceedings. While this writ petition was
pending, the State Government by its notification dated May 27, 1963 cancelled
the notification under s. 6. on September 10, 1964 the State Government issued
a fresh notification under s. 6 stating that the land was to be acquired at the
public expense, for the public purpose specified in column 4 of the schedule.
The public purpose specified in column 4 in
the schedule was 'For housing scheme undertaken by Sri Ayodhya Nagar Co-
operative Housing Society Ltd.
The High Court following its earlier decision
in Dosabhai Ratansha Keravala v. State of Gujarat & Ors. struck down the
second notification under s. 6 dated September 10, 1964. It held inter. alia
that the first notification under s. 6 issued on August 21, 1961 being an
acquisition for a society at its cost, was valid and the Government could have
proceeded to complete the acquisition under it but, under a false sense of
apprehension as to its validity, the Government cancelled it on May 27, 1963.
There was no justification for cancelling the first notification under s. 6 and
even if the Government wanted to cancel it out of a feeling of apprehension as
to its validity, the Government need not have taken one year and ten months to
do so. (2) After the issue of the first notification under s. 6 on August 21,
1961, the notification dated August 3, 1960 under s. 4 was exhausted and,
therefore, could not be used to support the second notification issued under s.
6 on September 11, 1964. (3) The cancellation of the first notification under
s. 6 by the notification dated May 27, 1963 did not have the effect of reviving
the notification under s. 4 so as to make it available for supporting the
second notification under s. 6. The second notifi- 287 cation under s. 6 not
being supported by any notification under s. 4 Was consequently invalid. (4) A
notification under s. 6 in order to be valid must follow within a reasonable
time after the issue of a notification under s.
4. The notification under s. 4 was issued on
August 3, 1960 and the second notification under s 6 on September 10, 1964 and
there was thus an interval of about four years and one month between the two
notifications. This interval of time, could not be regarded as reasonable. Even
tested by the yardstick of reasonable time provided by the legislature in the second
proviso introduced in s. 6 by the Land Acquisition (Amendment and Validation)
Act. 1967, namely three years, the period of about four years and one month
between the two notifications under s. 4 and s. 6 would be clearly
unreasonable. The second notification must, therefore, be held to be invalid on
this ground also.
We are clearly of the opinion that the High
Court was in error m striking down the second notification under s. 6 issued on
September 10, 1964. In Valjibhai. Muljibhai Soneji. v. State of Bombay the
Court held that the Government has no power to issue a notification for
acquisition of land for a public purpose, where the compensation is to be
entirely paid by a company. The first notification issued by the Government
under s. 6 for acquisition of the land for a public purpose, at the expense of
the second respondent, the Co-operative Society, was, therefore, invalid. The
State Government was, there- fore, justified in issuing the second notification
under s. 6 after removing the lacuna i.e., by providing for acquisition of the
land for the said public purpose, at public expense.
In an endeavour to support the judgment,
counsel for the first respondent advanced a three-fold contention. It was
urged, firstly, that successive notifications cannot be issued under s. 6
placing reliance on State of Madhya Pradesh & Ors. v. Vishnu Prasad Sharma
& Ors. It was pointed out that the Land Acquisition (Amendment and
Validation) Act, 1967 had a limited scope and it validated only successive notifications
issued under s. 6 in respect of different parcels of land but did not validate
successive notifications in respect of the same land. Further, it was urged
that the Act was not retrospective in operation and, therefore, the validity of
the second notification dated September 10, 1964 had to be Adjudged with
reference to the pre-amendment law, i.e., according to the law as declared by
this Court in Vishnu Prasad Sharma's case. Secondly, it was urged, on the
strength of the deci- 288 sion in Dosabhai Ratansha Karevala's case (supra)
that a notification under s. 4 is exhausted when it is followed by declaration
under s. 6 It was urged that the first notification under s. 6 dated August 21,
1961 was valid and the High Court was, therefore, justified in holding that
with its cancellation, the notification under s. 4 lapsed.
Thirdly, it was urged that there was
unreasonable delay in issuing the second notification under s. 6 and, this, by
itself, was sufficient to invalidate it.
In Vishnu Prasad Sharma's case the Court held
that ss. 4, S-A and 6 are integrally connected and present a complete scheme
for acquisition and, therefore, it was not open to the Government to make
successive declarations under s. 6.
Wanchoo J. (as he then was), speaking for
himself and Mudholkar J., observed:
"It seems to us clear that once a
declaration under s. 6 is made, the notification under s. 4(1) must be
exhausted, for it has served its purpose. There is nothing in ss. 4, 5-A and 6
to suggest that s. 4(1) is a kind of reservoir from which the government may
from time to time draw out land . and make declarations with respect to, it
successively. If that was the intention behind sections 4, S-A and 6 we would
have found some indication of it in the language used there in But as we read
these three sections together we can only find that the scheme is that s. 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 what particular land out of that locality it needs. This is
followed by a declaration under s. 6 specifying the particular land needed and
that in our opinion completes the process and the notification under s. 4(1)
cannot be further used thereafter. At the stage of s. 4 the land is not
particularised but only the locality is mentioned; at the stage of s. 6 the
land in the locality is particularized and thereafter it seems to us that the
notification under s. 4(1) having served its purpose exhausts itself."
Sarkar J., in a separate but concurring judgment, observed:
"My learned brother has said that ss. 4,
5A and 6 of the Act have to be read together and. so read, the conclusion is
clear that the Act contemplates only a single declaration under s. 6 in respect
of a notification under s. 4." 289 After rejecting the contention that the
Government may have difficulty A in making the plan of its projects complete at
a time, particularly where the project is large, and therefore, it is necessary
that it should have power to make successive declarations under s. 6, he
observed:
"I cannot imagine a Government, which
has vast resources, not being able to make a complete plan of its project at a time.
Indeed, I think when a plan is made, it is a complete plan. I should suppose
that before the Government starts acquisition proceedings by the issue of a
notification under s. 4, it has made its plan for otherwise it cannot state in
the notification, as it has to do, that the land is likely to be needed.
Even if it had not then completed its plan,
it would have enough time before the making of a declaration under s. 6 to do
so. I think, therefore, that the difficulty Of the Government, even if there is
one, does not lead to the conclusion that the Act contemplates the making of a
number of declarations under s. 6." In the present case, the question,
however, does not arise as the first notification under s. 6 dated August 21,
1961 being invalid, the Government was not precluded from making a second
notification. Due to the invalidity of the notification under s. 6, the
notification under s. 4 still held the field and on its strength another
notification under s. 6 could be issued. It is, therefore, not necessary to
deal with the effect of the validating Act.
The matter is squarely covered by the
decision of the Court in Girdharilal Amratlal Shodan & Ors. v. State of
Gujarat & Ors. The Court rejected the contention that by cancelling the
first notification under s. 6, as here, the Government must be taken to have
withdrawn from the acquisition and consequently could not issue a second
notification under s. 6. there also the first notification under s. 6 was
invalid and of no effect, as the Government had no power to issue a
notification for acquisition for a public purpose where the compensation was to
be paid entirely by a company? as held by this Court in Sham Behari & Ors.
v. State of Madhya Pradesh & Ors.
It will be noticed that in Girdharilal
Amratlal Shodan's case the facts were identical. On August 3, 1960 the
Government of Gujarat issued a notification under s. 4 in respect of certain
land falling in Final Plot No. 460 of the Town Planning Scheme No. III of
Elisbridge in the city of Ahmedabad, stating that the land was likely to be
needed for a public purpose, viz., for construction of houses for Sri Krishna-
290 kunja Government Servants' Co-operative Housing Society Ltd.
On July 18, 1961 the State Government issued
a notification under s. 6 stating that the land was to be acquired for the
aforesaid public purpose at the expense of Sri Krishnakunj Government Servants'
Co-operative Housing Society Ltd. On September 22, 1961, the landholder filed a
writ petition in the High Court for an order quashing the notification under s.
6. During the pendency of the proceedings, the Government issued a notification
dated April 28, 1964 cancelling the aforesaid notification dated July 18, 1961.
On August 14, 1964 the Government issued a fresh notification under s. 6
stating that the land notification under s. 6 staling that the land was needed
to be acquired at the public expense for a public purpose viz, for the housing
scheme undertaken by Sri Krishnakunj Government Servants' Co-operative Housing
Society Ltd.
The contention was that by cancelling the
first notification under s. 6, the Government must be deemed to have withdrawn
from the acquisition and cancelled the notification under s. 4, and therefore,
could not issue the second notification under s. 6, without issuing a fresh
notification under s. 4. It was also urged that the power of the State
Government to issue a notification under s. 6 was exhausted, and the Government
could not issue a fresh notification under s. 6. The Court rejected both the
contentions observing:
"Having regard to the proviso to' s. 6,
of the Act, a declaration for acquisition of the land for a public purpose
could only be made if the compensation to be awarded for it was to be paid
wholly or partly out of public revenues or some fund controlled or managed by a
local authority. The Government had no power to issue a notification for
acquisition for a public purpose where the compensation was to be paid .
entirely by a company. The notification dated
JULY 18, 1961 was, therefore, invalid and of no effect, see Shyam Behari v.
State of Madhya Pradesh. The appellants filed the writ petition challenging the
aforesaid notification on this ground. The challenge was justified and the
notification was liable to be quashed by the Court." "The State
Government realised that the notification was invalid, and without waiting for
an order of Court. cancelled the notification on April 28, 1964. The
cancellation was in recognition of the invalidity of the notification. The
Government had no intention of withdrawing from the acquisition. Soon after the
cancellation, the Government issued a fresh notification under s. 6 whereas in
this case the notifi- 291 cation under s. 6 is incompetent and invalid, the
Government may treat it as ineffective and issue a fresh notification under s.
6. This is what, in substance, the Government did in this case. The
cancellation on April 28, 1964 was no more than a recognition of the invalidity
of the earlier notification." The first notification issued under s. 6 on
August 21, 1961 was obviously invalid and of no effect. By the issue of this
notification, the Government had not effectively exercised its powers under s.
6. In the circumstances, the Government could well issue a fresh notification
under s. 6 dated September 10, 1964.
In State of Gujarat v. Musamiyan Imam Haider
Bux Razvi & Anr. etc. this Court while reversing the decision of the
Gujarat High Court in Dosabhai Ratansha Kerravala (supra) on which the High
Court based its decision, has laid down two important principles: (1) In view
of the decisions of this Court in Pandit Jhandu Lal & Ors. v. The State of
Punjab & Ors., Ratilal Shankarbhai & Ors. v. State of Gujarat &
Ors.
and Ram Swarup v. The District Land
Acquisition Officer, Aligarh & Ors. the acquisition of land for a
co-operative housing society is a public purpose. The Government is the best
Judge to determine whether the purpose in question is a public purpose or not;
and, it cannot be said that a housing scheme for a limited number of persons
cannot be construed to be a public purpose inasmuch as the need of a section of
the public may be a public purpose. (2) When a notification under s. 6 is
invalid, the government may treat it as ineffective and issue a fresh
notification under s. 6, and nothing in s. 48 of the Act precludes the
government from doing so, as held by this Court in Girdharilal Amratlal Shodan.
The High Court had not the benefit of these
decisions when it held that acquisition of land for a co-operative housing
society was not a public purpose and, therefore, the first notification dated
August 21, 1961 issued under s. 6 of the Act was valid. The substratum on which
the decision of the High Court rests has, therefore, disappeared. This Court in
Musamiyan's case distinguished the decision in State of Madhya Pradesh &
Ors. v. Vishnu Prasad Sharma & Ors. (supra) by quoting the passage referred
to above. The decision in Vishnu Prasad Sharma's case is not an authority for
the proposition that where a notification under s. 6 is found to be invalid it
cannot be followed by a fresh notification under s. 6. In fact, the decision of
the High Court 292 runs counter to what it had observed in Dosabhai Ratansha
Keravala's case, after referring to the decisions of this Court in Vishnu
Prasad Sharma's case and Girdharilal Amratlal Shodan's case:
"If the first s. 6 notification is
invalid, that is, non est, s. 4 notification cannot be regarded as exhausted,
for its purpose is yet unfulfilled; its purpose could be fulfilled only by
issue of a valid notification under s. 6." There remains the question
whether the High Court was right in quashing the second notification under s. 6
on the ground of unreasonable delay in its issuance. The respondent had not
taken any such ground in the writ petition filed by him. The High Court was,
therefore, not justified in observing that 'the appellant had not explained the
delay by filing any affidavit'. We fail to appreciate that if there was no
ground taken, there could be no occasion for filing of any such affidavit. Further,
the delay, if any, was of the respondent's own making. He had challenged the
first notification under s. 6, presumably on the ground that the acquisition
being for a public purpose, could not be made at the expense of the second
respondent. The challenge was justified and the State Government, therefore,
withdrew the first notification under s. 6 without waiting for an order of the
High Court. The cancellation was in recognition of the invalidity of the
notification. The Government had no intention of withdrawing from the
acquisition. Thereafter, the Government issued a fresh notification under s. 6
making a declaration for acquisition of the land for a public purpose at public
expense. There is nothing in the Act which precludes the Government from issuing
a fresh notification under s. 6, if the earlier notification is found to be
ineffective. The delay of one year and four months between the date of
cancellation and the issue of the second notification cannot be regarded to be
unreasonable, in the facts and circumstances of the case. In somewhat similar
circumstances, this Court recently in Gujarat State Transport Corpn. v. Valji
Mulji Soneji held the delay of about fifteen years in making the second
notification under s. 6 not to be unreasonable. We cannot, therefore, uphold
the High Court's decision that the second notification must be struck down on
the ground of delay.
In the result, the appeal succeeds and is
allowed with costs, the judgment of the High Court is set aside, and the writ
petition filed by the first respondent is dismissed.
Respondent No. 1 shall bear the costs.
N.K.A. Appeal allowed.
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