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PETITIONER: STATE OF GUJARAT

       Vs.

RESPONDENT: BHOGILAI, KESHAVLAL & ANR.

DATE OF JUDGMENT27/11/1979

BENCH: SEN, A.P. (J) BENCH: 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

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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 JUDGMENT: 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, tho 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

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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

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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

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    specifying the  particular land  needed and that in our      opinion completes  the  process  and  the  notification      under s.  4(1) cannot  be further  used there after. 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.

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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

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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

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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. 293