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PETITIONER: RAMGIR UTTAMGIR GOSWAMI

       Vs.

RESPONDENT: STATE OF GUJARAT & ANR.

DATE OF JUDGMENT20/01/1988

BENCH: KANIA, M.H. BENCH: KANIA, M.H. OZA, G.L. (J)

CITATION:  1988 SCR  (2) 776        JT 1988 (1)   167  1988 SCALE  (1)123

ACT:      Land Acquisition  Act, 1894: Sections 4 and Intra vires Constitution of  India 1950  Land-Acquisition of-Enlargement of village  site to  house  families  rendered  homeless  by floods  Collector/Survey  officer/Revenue  Authority-Whether must first decide on question regarding enlargement of site- Suitability of  land Assessment  of To  be decided  by  Land Acquisition officer  - Whether plea of exhaustion of ’public purpose’ on account of delay in acquisition tenable.      Bombay Land  Revenue Code,  1879: Section 126 Limits of sites  of   villages,  towns   and   cities-Collector/Survey officer-Not necessarily  to first decide question to enlarge or vary, site before resorting to acquisition.

HEADNOTE: %      The lands  of the  appellant were situated on the banks of the  river Tapti known for its frequent floods. They were sought to  be acquired under the Land Acquisition Act, 1894. The preliminary  notification  declaring  the  intention  to acquire the  said land  was issued under s. 4 of the act and published in  the Government  Gazette on  April 30, 1970. It was notified  that the  proposed  acquisition  was  for  the public purpose  for extension  of the  village site  for the purpose  of  housing  12  families  who  had  been  rendered homeless because of floods in the Tapti river. An individual notice under  s. 4 of the Act was served on the Appellant on May 2,  1970. He  filed his  objections against the proposed acquisition on  May 12, 1970 and filed additional objections on June  20, 1970  and July  6, 1970 respectively. After the consideration and  rejection of  the  said  objections,  the notification of  the lands under s. 6 was issued on December 8, 1970. Notices under s. 9 were issued on January 8, 1971.      The appellant challenged the aforesaid acquisition in a writ petition in the High Court on various grounds, the main ground being  that the  provisions of ss. 4 and 6 of the Act were ultra  vires the Constitution. The High Court dismissed the petition,  but granted  a certificate  of fitness  under Article 133(t)(c) of the Constitution. 777      In the  appeal to this Court on behalf of the appellant it was  conceded: (1)  that the  vires of  sections 4  and 6

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could no  longer be called in question, but it was submitted that (t)  under the  provisions of  the Bombay  Land Revenue Code, 1879  it must  be established  that the  lands in  the existing village  site are insufficient for the extension of the village  site before any acquisition can be resorted to, (2) the  land acquisition authorities had failed to consider what were  the other  lands available  which could have been more conveniently acquired, and (3) since several years have passed from  the date  of the  Notification under  s. 4, the victims  of   the  floods   must  have   been   housed   and rehabilitated elsewhere  and hence  the public  purpose  for which the lands were sought to be acquired does not survive.      Dismissing the Appeal the Court, ^      HELD: t. The challenge to the vires of sections 4 and 6 of the  Land Acquisition Act, 1894 no longer survive in view of the  validity of  the sections having been upheld by this Court in  Manubhai Jehtalal  Patel  and  Anr.  v.  State  of Gujarat and others, ]983 4 SCC 553. [778F]      2. Section  126 of  the Bombay Land Revenue Code merely deals with  the limits  of the  site of any village, town or city and  prescribes the  procedure for fixing the limits of such sites. There is nothing in the Bombay Land Revenue Code or the  Land Acquisition Act which would suggest that before acquisition can be resorted to for enlarging a village site, the Collector  or a Survey officer or Revenue Authority must decide upon such enlargement. [781E-F]      Chandrabhagabai Udhaorao  and others  v.  Commissioner, Nagpur Division,  Nagpur   Ors., [1962]  Nagpur Law Journal, Vol.  XLV   at  p.  466  and  Sitaram  Maroti  v.  State  of Maharashtra,   [1963]    65   Bombay   Law   Reporter,   241 distinguished.      3. The  assessment of  suitability of the land proposed to be acquired for the concerned public purpose is primarily for the  Land Acquisition  officer to  consider, and no good reason has been shown on behalf of the appellant which could warrant  interference   with  his  decision.  Moreover,  the appellant had not even given proper particulars of the other lands which,  according to him, were available and were more suitable for  acquisition and hence he can make no grievance on the  score of  proper consideration not having been given to the question of acquiring such lands. [782BC-D] 778      4. The  delay in  the acquisition  has taken  place  on account of  the legal  proceedings adopted  by the Appellant himself and by reason of the interim orders obtained by him. He cannot  take advantage  of this  delay and claim that the public purpose  no longer  survives.  Moreover,  the  public purpose stated  in the  Notification is  the extension  of a village site  or goathan of the village Bhairav and there is nothing to  show  that  the  public  purpose  has  exhausted itself. In  fact, on  account of  increasing population,  it would be  more necessary  today that the village site should be  extended   even  then  it  was  at  the  time  when  the notification was issued.[782E-F]

JUDGMENT:      CIVIL APPELLATE  JURISDICTION: Civil Appeal No. 2720 of 1972.      From the  Judgment and  order dated  29/30-8-72 of  the Gujarat High Court in Special Civil Appeal No. 315 of 1971.      T.U. Mehta and M.N. Goswami for the Appellant.      Vimal  Dave,   M.N.  Shroff   and  KMM   Khan  for  the

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Respondents.      The Judgment of the Court was delivered by      KANIA, J.  This is  an Appeal against the judgment of a Division Bench  of the  Gujarat High Court dismissing a writ petition filed  by the Appellant herein. The Appeal has been filed on  a certificate  of fitness  granted by  the Gujarat High Court under Article 133(1)(c) of the Constitution.      The main  challenge in  the writ  petition was  to  the vires  of   sections  4  and  6  respectively  of  the  Land Acquisition Act,  1894. That challenge no longer survives in view of  the validity  of the sections having been upheld by this Court  in Manubhai  Jehtalal Patel and Anr. v. State of Gujarat and  others, [1983]  4  S.C.C.  553.  The  lands  in question are  situated at  village Bhairav,  Taluka Kamrege, District Surat,  Gujarat. The said lands are situated on the bank of  the river  Tapti which  is known  for its  frequent floods and  the lands  are covered in Survey No. 2. The said lands admeasure  1 acre  and 39 gunthas. We propose to refer to the  said lands  in the aggregate as "the said land". The said land  is also  known as the "Maksheshwar Mahadev Land". The Appellant  claims to  be the  occupant and  owner of the entire land  comprising in  Survey No.  2 which includes the said land.  It may  be  mentioned  that  the  claim  of  the Appellant to be the owner and 779 Occupier of  the said  land is based on his being the senior member of  his family  but we  are not  concerned with  that question as  we propose to proceed on the footing that he is in actual  occupation of  the  said  land.  The  preliminary notification declaring  the intention  to acquire  the  said land was issued under section 4 of the Land Acquisition Act, 1894 and published in the Government Gazette of the State of Gujarat on April 30, 1970. It was notified that the proposed acquisition was  for a public purpose, namely, for extension of the  village site  of the  village Bhairav.  It is common ground that the extension of the village site was required for the purpose of housing 12 families who had been rendered homeless because  of floods  in Tapti  river. An  individual notice under  section 4  of the  Land  Acquisition  Act  was served on  the Appellant on May 2, 1970. The Appellant filed his objections  against the  proposed acquisition on May 12, 1970 and  filed additional  objections on  June 20, 1970 and July 6, 1970 respectively. After consideration and rejection of the  said objections, the notification for acquisition of the lands  under section  6 of  the Land Acquisition Act was issued on  December 8,  1970. Notices under section 9 of the Land Acquisition  Act were  issued on  January 8,  1971. The said acquisition was challenged by the Appellant in the writ petition on various grounds.      The main  ground on  which  the  said  acquisition  was challenged in  the writ  petition was that the provisions of sections 4  and 6  respectively of  the Land Acquisition Act were ultra  vires the Constitution of India. That challenge, as we  have already  pointed out, has been finally negatived by this  Court. In  view of  this, Mr. Mehta fairly conceded that the  vires of  sections 4 and 6 of the Land Acquisition Act could no longer be called in question before us. It was, however, pointed  out by  him that the said notification was also challenged on some other grounds.      It was contended by Mr. Mehta that under the provisions of  the   Bombay  Land   Revenue  Code,  1879,  it  must  be established that  the lands in the existing village site are insufficient for  the extension  of the  village site before any acquisition  can be resorted to. It was submitted by Mr. Mehta that  before the  said land  could be acquired for the

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afforested public  purpose, the  revenue authorities  should have satisfied  themselves that  there  were  no  unoccupied lands in  the village  which were  suitable, appropriate and available for the extension of the village site or abadi and since that has not been done, the acquisition could not said to be  for a  public purpose.  Mr. Mehta  sought support for these submissions  from the  decision of a Division Bench of the Nagpur Bench of the Bombay High Court in Chandrabhagabai Undha- 780 orao and  others v.  Commissioner, Nagpur Division, Nagpur & Ors.,[1962] Nagpur  Law Journal,  Vol. XLV at p. 466. It was held in  that case that the provisions of section 226 of the Madhya Pradesh  Land Revenue  Code require  that the  Deputy Commissioner of  the District or any other person authorised under law  by him  must record  a finding  that the  village abadi is  insufficient and that there is no other unoccupied land suitable  for the  purpose of  extension of the village abadi before  land could  be compulsorily  acquired for that purpose. The  decision as to the sufficiency or otherwise of the  land   in  the  abadi  must  be  taken  by  the  Deputy Commissioner. The Land Acquisition officer cannot substitute his  opinion   for  that   of  the  Deputy  Commissioner  in purporting to  comply with  the provisions  of section  226. Reliance was  also placed  by Mr. Mehta on the decision of a Division Bench (Nagpur) of the Bombay High Court, in Sitaram Maroti  v.  State  of  Maharashtra,  [1963]  65  Bombay  Law Reporter, 241  which is  to the same effect as the aforesaid decision and,  in fact,  follows it. It was submitted by Mr. Mehta that  the provisions  of section  226  of  the  Madhya Pradesh Land  Revenue Code were substantially similar to the provisions of  section 126  of the  Bombay Land Revenue Code which is  really the  provision applicable  to the  lands in question before  us. We  are totally  unable to  accept  the submission of Mr Mehta that the provisions referred to above are in pari materia.      Section 226  of the  Madhya Pradesh  Land Revenue  Code provides as follows:           "226. (1)  Where the area reserved for abadi is in           the   opinion    of   the    Deputy   Commissioner           insufficient, he  may reserve  such  further  area           from the  unoccupied land in the village as he may           think fit.           (2) Where unoccupied land for purposes of abadi is           not available,  the State  Government may  acquire           any land for the extension of abadi and the Deputy           Commissioner shall  dispose of  such land  on such           terms and conditions as may be prescribed.           (3) The  provisions of  the Land  Acquisition Act,           1894  shall   apply  to   such   acquisition   and           compensation shall  be payable for the acquisition           of such  land in accordance with the provisions in           that Act." A perusal  of the  said section  shows that before the State Government 781 acquires  any  land  for  extension  of  abadi,  the  Deputy Commissioner has  to give his opinion that the area reserved for abadi  in the  village in  question in  insufficient.  A reading of sub-section (2) of the said section shows that it is only  where unoccupied  land for  the purpose of abadi is not available,  that the  State can  acquire  any  land  for extension  of   abadi.  Sub-section  (3)  merely  makes  the provisions of  the Land  Acquisition Act  applicable to  the procedure  for   acquisition   and   for   determining   the

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compensation. The  provisions of  section 126  of the Bombay Land Revenue  Code, 1879  read altogether  differently.  The said section runs as follows:           "126. Limits of sites of villages, towns and                 cities how to be fixed.                     It shall  be lawful for the Collector or                for  a   survey  officer,  acting  under  the                general  or   special  orders  of  the  State                Government,  to   determine  what  lands  are                included within  the  site  of  any  village,                town, or  city, and  to fix, and from time to                time to  vary the limits of the same, respect                being  had   to  all   subsisting  rights  of                landholders."      A perusal  of section  126 of  the Bombay  Land Revenue Code shows  that unlike  section 226  of the  Madhya Pradesh Land Revenue  Code, there  is nothing  in section  126 which indicates that  the Collector  or a  Survey  officer  acting under his  orders has to first decide to enlarge or vary the site of  any village,  town or  city before  acquisition  is resorted to  for enlarging  or varying  such site  under the Act. Section 126 merely deals with the limits of the site of any village,  town or  city and prescribes the procedure for fixing the  limits of  such sites.  There is  nothing in the Bombay Land  Revenue Code  or the Land Acquisition Act which would suggest that before acquisition can be resorted to for enlarging a  village site, the Collector or a Survey officer or Revenue  Authority must  decide  upon  such  enlargement. Great emphasis  was laid  by Mr.  Mehta on  the last part of section 126 which shows that the enlargement of the site has to be  made, keeping  in mind the rights of the landholders. However, in  our opinion,  this factor is of no relevance in the present  case as there is nothing on record to establish that such rights have not been taken into account.      The next  submission of  Mr. Mehta  was that  the  land acquisition authorities  have failed  to consider  what were the  other  lands  available  which  could  have  been  more conveniently acquired  for the  public purpose  referred  to earlier. It  was  pointed  out  by  him  that  in  the  writ petition, the  Appellant (petitioner)  has alleged  that  he could have 782 pointed out  certain other  lands and  open spaces where the twelve families  rendered homeless  by the  floods of  Tapti river could  have  been  housed.  With  reference  to  these allegations,  the  Respondents  in  their  counter-affidavit filed before the Gujarat High Court have rightly pointed out that the Appellant had not given any details regarding other more suitable  lands available  for acquisition and hence it was not  open to  him to  make a  grievance on  that  score. Moreover, in  paragraph 29  of  the  counter-affidavit,  the Respondents have  pointed out  that the lands referred to by the Appellant  in his petition were not suitable for housing the victims  of the  floods because they were lowlying lands lands  and   not  suitable  for  residential  purposes.  The assessment  of  suitability  of  the  land  proposed  to  be acquired for  the concerned  public purpose is primarily for the Land Acquisition officer consider and no good reason has been shown  to us  which could warrant interference with his decision. Moreover,  we are satisfied that the Appellant had not even  given proper particulars of the other lands which, according to  him, were  available for  acquisition and were more suitable  for acquisition  and hence  he  can  make  no grievance on  the score  of proper  consideration not having been given to the question of acquiring such lands.

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    It was lastly submitted by Mr. Mehta that since several years had  passed from  the date  of the  Notification under section 4,  the victims  of the floods must have been housed and rehabilitated elsewhere and hence the public purpose for which the lands were sought to be acquired does not survive. We are  a little  surprised at  this argument. The delay has taken place  on account  of the legal proceedings adopted by the Appellant  himself and  by reason  of the interim orders obtained by  him. He cannot take advantage of this delay and claim that  the public purpose no longer survives. Moreover, the  public  purpose  stated  in  the  Notification  is  the extension of  a village  site  or  goathan  of  the  village Bhairav and  there is  nothing  to  show  that  this  public purpose has  exhausted  itself.  In  fact,  we  presume,  on account of  the  increasing  population,  it  will  be  more necessary today  that the  village site  should be  extended even then  it was the time when the notification was issued. This submission must also fail.      The other  controversies sought  to be  raised  by  the Appellant are  factual in  nature and  we do not consider it necessary to go into the same.      In the  result, the  Appeal fails and is dismissed with costs. N.V.K                                      Appeal dismissed. 783