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PETITIONER: AMBALAL PURSHOTTAM ETC.

       Vs.

RESPONDENT: AHMEDABAD MUNICIPAL CORPORATION & ORS.

DATE OF JUDGMENT: 19/02/1968

BENCH: SHAH, J.C. BENCH: SHAH, J.C. RAMASWAMI, V. MITTER, G.K.

CITATION:  1968 AIR 1223            1968 SCR  (3) 207

ACT: Land  Acquisition Act-Structures made after s. 4 notice,  on undertaking by owners not to claim compensation-Tenants,  if can   challenge   Acquisition  for  Municipality,   if   any restrictions. Bombay  Municipal Boroughs Act, 1925 (Bom.  Act 18 of  1925) Ss.  52,  114-Powers  of  Municipality  to   acquire-Whether attempt to purchase by private treaty prerequisite.

HEADNOTE: For widening a street, the respondent-municipality requested the  State Government to acquire the lands within the  "line of  the street" prescribed by the Municipality.   After  the State Government issued notification under s. 4 of the  Land Acquisition  Act, the owners of the lands put  up  temporary structures  upon  the  lands  with  the  permission  of  the Municipality  on giving an undertaking that they  would  not claim   compensation  for  those  structures  in  the   land acquisition proceedings.  The structures were let out to the appellants.   Notifications  were  issued  under  s.  6  and compensation payable determined.  When attempts were made to take   possession  of  the  land  acquired,   the   tenants- appellants, moved writ petitions in the High Court The  High Court rejected the petitions.  Dismissing the appeals,  this Court, HELD  : By the compulsory acquisition for a public  purpose, subject  to payment of compensation, no  fundamental  rights guaranteed under Arts. 19 and 31(2) of the Constitution were infringed.    The   lands   were   properly   notified   for acquisition.   The  compensation payable in respect  of  the lands was determined.  If there was any grievance which  the appellants  were  entitled  to  raise  in  respect  of   the compensation  determined  as payable, their  remedy  lay  in approaching  the Courts competent to determine  that  quest- ion. [210 D-E] For the purpose of widening the street, the Municipality had the power Linder s. 114 of the Bombay Municipal Boroughs Act 1925  to  purchase  land  and under s. 52  of  the  Act  the Municipality  could  request the local  Government  to  take action  for  compulsory  acquisition of  the  land  and  for vesting  the  same in the Municipality.  The  power  of  the

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appropriate  Government under s. 4 of the  Land  Acquisition Act  to  notify  land needed or likely to be  needed  for  a public purpose is not ’subject to the restriction, that when the public purpose is of a municipality the municipality has attempted  to  purchase the land by private treaty  and  has failed in that attempt. [211 G, 212 B-C] The appellants as lessees of the structures had no right  in the  land  on which the structures  stood.   The  structures belonged  to the owners of the land. and were allowed to  be put up after the date of the notification under s. 4 of  the Land Acquisition Act was issued on the undertaking that  no, compensation shall be claimed ’in respect of the structures. The  appellants  were not on the lands at the date,  of  the notification under s. 4, and being tenants of the structures they acquired, prima facie, no interest in the lands.   Even assuming  that  they had acquired, by virtue of  their  res- pective  tenancies, an interest in the lands,  their  remedy was to approach 208 the Land Acquisition Authorities for claiming  apportionment of compensation.  L212 G. HI

JUDGMENT: CIVIL APPELLATE JURISDICTION : Civil Appeal No. 1369 to 1407 and 1564 to 1578 of 1967. Appeals by Certificates/Special leave from the judgment  and order  dated  February 1966 of the Gujarat  High  Court,  in Special Civil Application Nos. 912, 916, 918, 920, 922, 923, 925, 929, 930, 931, 938 and 941 of 1964, and 917, 926,  927, 928, 932, 933, 934, 921, 935, 942, 924, 939 and 940 of  1964 respectively. Vithalbhai  Patel and S. S. Shukla, for the  appellants  (in all the appeals). I.   N. Shroff, for respondent No. 1 (in C.As. Nos. 1396  to 1407 of 1967). Purshottam Trikamdas and 1. N. Shroff, for respondent No.  1 (in C.As. Nos. 1564 to 1578 of 1967). R.   H. Dhebar, S. K. Dholakia and S. P. Nayyar, for  respon -dents Nos. 2 and 3 in all the appeals). The Judgment of the Court was delivered by Shah, J On June 6, 1941, the Municipal Borough of  Ahmedabad prescribed  a  "line  of  the  street"  along  an  important thoroughfare  in  the town of Ahmedabad  and  resolved  that steps be taken for compulsory acquisition of lands  falling, "within the line." On June 9, 1941 a notification was issued by  the  Government  of  Bombay  under  S.  4  of  the  Land Acquisition  Act,  1894,  that  the lands  set  out  in  the Schedule  "were likely to be needed for the  public  purpose set out in column 6 of the Schedule thereto, viz., for  road widening",  and that "any contracts for the disposal of  any of  the  said lands by sale,  lease,  mortgage,  assignment, exchange  or otherwise, or any outlay or  improvements  made therein  without the sanction of the Collector.......  after the  date  of  this  notification  will,  under  section  24 (seventhly)  of the said Act, be disregarded by the  officer assessing  compensation for such parts of the said lands  as may be finally acquired." The government of Bombay issued  a notification under S. 6 of the Land Acquisition Act sometime in  1943,  and also appointed the Special  Land  Acquisition Officer to take order for acquisition of the lands. After the publication of the notification under S. 4 of  the Land Acquisition Act, structures on the lands notified  were burnt  down  by  rioters.  The owners of the  lands  put  up

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temporary  structures upon the lands with the permission  of the  Municipal Borough giving an undertaking that they  will not claim compensation for 209 these  structures in the land acquisition proceedings.   The structures were let out to different tenants. Proceedings  for assessment of compensation were  not  imme- diately taken in hand, but negotiations were started by  the Municipal Borough with the owners of the lands, and  between the  years  1944 and 1952 some lands were purchased  by  the Municipal  Borough  by  private  treaty  and  the  lands  so purchased   were   withdrawn  from  the   notification   for acquisition.   Finding that it was not possible to  persuade the  other  owners  to sell their lands,  the  Special  Land Acquisition  Officer  was  moved to  make  his  award.   The Special  Land  Acquisition Officer made a  common  award  on August 13, 1960.  When the Special Land Acquisition  Officer attempted  to  take possession of the  lands  acquired,  the tenants of the structures moved petitions under Art. 226  of the  Constitution  in the High Court of  Gujarat  for  writs quashing or setting aside the notifications under ss. 4  and 6  of  the  Land Acquisition Act, and  the  awards  and  the notices   issued   for   obtaining   possession   from   the petitioners. The  High Court rejected the petitions.  Against the  orders rejecting the petitions, these appeals have been filed  with special leave. In these appeals counsel for the appellants contended  that- (1) the notification issued by the Government of Bombay, the award made by the Special Land Acquisition Officer, and  the proceedings   subsequent  to  the  award  were  invalid   as infringing  Arts. 19 and 31(2) of the Constitution  in  that the  appellants  were deprived of their  right  to  property otherwise  than  in  accordance  with  law;  (2)  that   the conditions precedent to the exercise of the power to acquire the  lands under the Land Acquisition Act being absent,  all the proceedings including the notification under s. 4 of the Land  Acquisition Act were invalid; (3) that the  rights  of the appellants in the structures occupied by them as tenants were  not  affected by the award as no notices  were  served upon  them by the Special Land Acquisition Officer under  s. 9(3)  of  the Land Acquisition Act, and they  could  not  be deprived of their right in the structures; and (4) that  the notifications under Jr Ss. 4 & 6 of the Land Acquisition Act were  without  jurisdiction because there was  "no  possible need"  of  the lands by the Municipal Corporation,  and  the proceedings  were  commenced not for the purpose  for  which they  may under the law be commenced. but for  a  collateral purpose, viz., to acquire the land in future at rates pegged down to the date on which the notification under s.    4 was issued. In our judgment there is no substance in any of the conten- tions  raised.   It may be recalled that the  appellants  in these 210 appeals are not the owners of the lands acquired : they  are tenants   in  occupation  of  structures  permitted  to   be constructed   upon   the  lands  after  the  date   of   the notification  under  s. 4 of the Land  Acquisition  Act,  on condition  that  the  owners of the  lands  will  not  claim compensation  for those structures.  If the land owners  are not  entitled  to  claim compensation  for  the  structures, evidently  the persons who occupy those structures  and  who have  come to occupy the same after the notification,  have, no interest in the lands or the compensation and they cannot

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hold  up  the  acquisition  proceedings  by  preventing  the Special Land Acquisition Officer from taking over possession of the lands. The   Land  Acquisition  Act  authorises   the   appropriate Government  to  notify land for acquisition which is  or  is likely to be needed for a public purpose : and road widening in   a  town  is  undoubtedly  a  public   purpose.    After considering the report of the Collector under s. 5-A of  the Land  Acquisition Act, the Government of Bombay published  a notification under s. 6(1) of the Land Acquisition Act  that the   lands  were  needed  for  a  public   purpose.    That declaration was, by virtue of s. 6(3) of the Act, conclusive evidence  that the lands were needed for a  public  purpose. By the compulsory acquisition for a public purpose,  subject to payment of compensation, no fundamental rights guaranteed under  Arts. 19 & 31(2) of the Constitution were  infringed. The  lands  were  properly notified  for  acquisition.   The compensation  payable  in  respect of  the  lands  has  been determined.  If there is any grievance which the  appellants are  entitled  to  raise  in  respect  of  the  compensation determined as payable, their remedy lies in approaching  the courts  competent to determine that question.  The  plea  of infringement  of  fundamental rights of  the  appellants  is wholly  unsubstantial and was rightly not raised before  the High Court in the writ petitions out of which these  appeals arise. In  considering  the second contention that  the  conditions precedent  to  the exercise of the power, to  acquire  lands have  not been fulfilled, it is necessary first to refer  to certain  provisions of the Bombay Municipal Boroughs Act  18 of 1925.               S.52  "When  there is any,  hindrance  to  the               permanent   or  temporary  acquisition  by   a               municipality  upon  payment  of  any  land  or               building  required  for the purposes  of  this               Act,  the  Provincial  Government  may,  after               obtaining  possession of the same  for  itself               under  the  Land Acquisition  Act,  1894,  or,               other existing law, vest such land or building               in   the  municipality  on  its   paying   the               compensation  awarded, and on its repaying  to               the  Provincial Government all costs  incurred               by the Provincial Government on account of the               acquisition." 211 Section 63 of the Bombay Municipal Boroughs Act by the first sub-section authorises the Municipal Borough to acquire  and hold property both movable and immovable; whether within  or without  its  limits.   Section  118  authorises  the  Chief Officer of the municipality, subject to the approval of the, municipality,  to  prescribe a line on each  side  of  every public street within the municipal borough and from time  to time  to prescribe a fresh line in substitution of any  line so prescribed or for any part thereof.  By cl. (a) of sub-s. (3)  of  s. 118, except under the, provisions of s.  143  no person  shall  construct or reconstruct any portion  of  any building  within  the  regular line  of  the  public  street without  the permission of the Chief Officer under  s.  123. Clause  (b) of sub-s. (3) of s. 118 provides that  when  the Chief Officer refuses permission to construct or reconstruct any  building  in any area within the regular  line  of  the public  street,  such area shall with the  approval  of  the municipality be added to the street and shall thenceforth be deemed part of the public street and shall be vested in  the municipality.   Clause (c) of sub-s. (3) of s. 118  provides

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that  the amount of compensation shall be determined in  the mariner provided by s. 198 which shall be paid by the  muni- cipality  to the owner of any land added to a  street  under cl.  (b) of sub-s. (3).  Section 114(1) of the Act  provides that  it shall be lawful for a municipality to lay  out  and make new public streets to construct tunnels and other works subsidiary  to  public streets; to widen, open,  enlarge  or otherwise improve, and,to turn, divert, discontinue or  stop up any public street. On  a  review  of  these provisions it  is  clear  that  the municipality under the Bombay Municipal Boroughs Act,  1925, had the power to acquire land needed for municipal  purposes including   widening,   opening,  enlarging   or   otherwise improving   any  public  street  or  municipal  road.    The municipality laid down a line of the street: after the  line of the street was laid down, it was open to the municipality to  decline  permission  to  construct  or  reconstruct  any building  on the land and the lands were to be deemed  added to the street.  But the municipality did permit construction on  the lands.  The provisions of cl. (b) of s. 118(3)  were therefore  not attracted.  For the purpose of  widening  the street,  the  municipality  had the power under  s.  114  to purchase  the land, and under s. 52 the  municipality  could request  the local Government to take action for  compulsory acquisition  of  the land and for vesting the  same  in  the municipality.   Counsel  for the appellants urged  that  the power  conferred  upon  the  municipality  could  only   be, exercised when there was any "hindrance to the permanent  or temporary  acquisition"  by  the municipality  of  any  land required for the purposes of the Act, and since there is  no proof of such hindrance, all the proceedings for acquisition must  be  deemed  void.  In our judgment,  the  argument  is misconceived.  Section 212 52  of the Bombay Municipal Boroughs Act,  1925,  authorises the  municipality  to  purchase property  required  for  the purpose  of  the Act by private treaty or  to  approach  the Government  for  compulsory acquisition of the  land  for  a public  purpose.   Section 52 merely  sets  out  alternative modes  of  acquiring  property : it does  not  provide  that before  a  Municipal  Borough may  move  the  Government  to acquire  land  under the Land Acquisition Act,  the  Borough should  have made attempts to purchase the.land  by  private treaty  and have failed in that attempt.  In any  case,  the power  of the appropriate Government under s. 4 of the  Land Acquisition Act to notify land needed or likely to be needed for a public purpose is not subject to the restriction  that when  the  public  purpose  is  of  the  municipality,   the municipality  has attempted to purchase the land by  private treaty  and has failed in that attempt.  The scheme  of  the Land Acquisition Act is that whenever the land is needed for a  public  purpose or is likely to be needed  for  a  public purpose, the Government may resort to the machinery provided under  the  Act for acquiring the land.   Where  the  public purpose  is  the  purpose  of  a  local  authority  and  the provisions of the Land Acquisition Act are put in force  for acquiring land at the cost of any fund controlled or managed by  a  local authority, s. 50 of the  Land  Acquisition  Act provides  that  the  charges  of  and  incidental  to   such acquisition  shall be defrayed from such fund.  There is  no other  bar statutory or otherwise to the acquisition of  the land  for  purposes  of  a  municipality.   In  issuing  the notification  under  s. 4 of the Land Acquisition  Act,  the appropriate  Government is therefore not  prevented,  merely because  the municipality has not attempted to  acquire  the

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land by private treaty.  There was, therefore, no  condition precedent   to  the  acquisition  of  the  land   before   a notification  under  s. 4 of the Land  Acquisition  Act  was issued which was not complied with. The  contention that the proceeding for making of his  award by the Special Land Acquisition Officer was invalid has also no  substance.  The appellants as lessees of the  structures had no fight in the land on which the structures stood.  The structures  belonged  to the owners of the  land,  and  were allowed  to  be Put up after the date  of  the  notification under  s. 4 of the Land Acquisition Act was issued,  on  the undertaking that no compensation shall be claimed in respect of the structures.  The appellants were not on the lands  at the  date of the notification under s. 4, and being  tenants of the structures they acquired, prima facie, no interest in the lands.  Even assuming that they had acquired, by  virtue of  their respective tenancies, any interest in  the  lands, their   remedy   was  to  approach  the   Land   Acquisition authorities for claiming apportionment of compensation.   It may be pointed out 213 hat  this contention was not raised, before the  High  Court and has been raised for the first time in this Court. The  last argument raised by counsel for the appellants  is, in  our  judgment futile.  The notification  issued  by  the Government of Bombay under s. 6 of the Land Acquisition  Act was by operation of sub-s. (3) conclusive evidence that  the land  was  needed  for a public  purpose.   No  inquiry  was thereafter  permissible that the land was not needed  for  a public  purpose.  It is true that no steps were  immediately taken  by the Land Acquisition Officer authorities  to  make awards of compensation and to take possession of the  lands. But  the  reason apparently was that the  municipality  was. still trying to purchase the land by private treaty and when it was found that it could not purchase the lands, the  Land Acquisition   Officer   was  requested   to   expedite   the determination  of compensation.  We are unable to hold  that there  is any evidence that the Government of Bombay  issued the notification under s. 4 of the Land Acquisition Act, not for  the  bona  fide purpose of acquisition,  but  with  the object  of  pegging down prices so that the lands  may  when needed  be obtained at those rates in future.  The land  was within  the  line of the street and could  not  without  the sanction  of the municipality be put to any profitable  use. If  either the land owners or the tenants were aggrieved  by the  delay,  it was open to them to claim  writs  or  orders compelling  the State Government to complete the  assessment and  payment  of  compensation.  We are  not  hereby  to  be understood   as   suggesting  that  after  issue   of’   the notifications  under  ss. 4 & 6 the  appropriate  Government would  be justified in allowing the matters to drift and  to take  in hand the proceeding for assessment of  compensation whenever they think it proper to do.  It is intended by  the scheme  of the Act that the notification under s. 6  of  the Land  Acquisition Act must be followed by a  proceeding  for determination  of  compensation  without  any   unreasonable delay.   But on the facts of the present case, it  does  not appear that there was any scope for holding that with a view to   prevent  the  land  owners  or  the  persons   claiming derivative  title from them from getting the benefit of  the rise in prices, notifications under ss. 4 and 6. were issued without  any intention to take steps for acquisition of  the lands. The appeals fail and are dismissed with costs.  One hearing, fee in all the appeals.  Separate costs will be paid by  the

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appellants to the Corporation and to the State Government. Y.P.                          Appeals dismissed. 214