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PETITIONER: GIRDHARILAL AMRATLAL SHODAN AND OTHERS

       Vs.

RESPONDENT: STATE OF GUJARAT AND OTHERS

DATE OF JUDGMENT: 28/01/1966

BENCH: BACHAWAT, R.S. BENCH: BACHAWAT, R.S. SARKAR, A.K. MUDHOLKAR, J.R.

CITATION:  1966 AIR 1408            1966 SCR  (3) 437  CITATOR INFO :  F          1977 SC 594  (4)  F          1980 SC 367  (8,9,11,12)  R          1988 SC1615  (7)

ACT: Land Acquisition Act, 1894 (1 of 1894)-Notification under s. 6 invalid and ineffective-Power of Government to issue fresh notification.

HEADNOTE: Where a notification under s. 6 of the Land Acquisition Act, 1894 is invalid, the Government may treat it as  ineffective and  issue  in its place a fresh notification  under  s.  6. Nothing  in s. 48 of the Act precludes the  Government  from doing  so.  The cancellation of the earlier notification  is only  a recognition of the invalidity of that  notification. [439 B-C]

JUDGMENT: CIVIL  APPELLATE  JURISDICTION : Civil Appeal  No.  1070  of 1965. Appeal  from the judgment and order dated April 2,  1965  of the Gujarat High Court in Special Civil Application No.  584 of 1961. Niren De, Additional Solicitor-General and J. B.  Dadachanji for the appellants. R.   Ganapathy  Iyer and B. R. G. K. Achar,  for  respondent Nos. 1 and 2. Arun H. Mehta, M. N. Shroff and I. N. Shroff, for respondent No. 3. The Judgment of the Court was delivered by Bachawat, J. : On August, 3, 1960, the Government of Gujarat issued  a  notification under s. 4 of the  Land  Acquisition Act, 1894 (hereinafter referred to as the Act) stating  that the  land measuring about 7151 sq. yards in Final  Plot  No. 460  of  the Town Planning Scheme No. III of  Elisbridge  in Ahmedabad taluka city, village Changispur, was likely to  be needed  for  a  public purpose, viz.,  for  construction  of houses for Shri Krishnakunj Government Servants Co-operative

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Housing Society, Ltd., Ahmedabad.  The land is the  subject- matter  of a trust of Which appellant No. 1 is  the  trustee and appellants Nos. 2 to 6 are the beneficiaries.  An enquiry under s. 5-A of the Act was duly held, and a  report under s., 5A(2) was made to the Government.  On July 18, 196 1, the State Government issued a notification’ under s. 6 of the Act stating that the land was needed to be acquired  for the  aforesaid  public  purpose  at  the  expense  of   Shri Krishnakunj Government Servants co-operative Housing Society Ltd.   On September, 22, 1961, the appellants filed  a  writ application in the High Court of Gujarat 437 438 praying  for an order quashing the notification under  s.  6 dated   July  18,  1961.   During  the  pendency   of   this application,  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  was needed  to  be acquired at the public expense for  a  public purpose,  viz.,  for the housing scheme undertaken  by  Shri Krishnakunj   Government   Servants   Co-operative   Housing Society,   Ltd.,   Ahmedabad  with  the  sanction   of   the Government.  The appellants were thereupon allowed to  amend the  writ petition, and by the amended writ  petition,  they prayed  for  an order quashing the notification under  s.  6 dated  August 14, 1964 as also the notification under  s.  4 dated  August  3, 1960.  On April 2, 1965,  the  High  Court dismissed  the  application.  The appellants now  appeal  to this Court on a certificate granted by the High Court. Counsel  for the appellants submitted that the power of  the State Government to cancel a notification under s. 6 of  the Act  implied  by s. 21 of the General Clauses Act,  1897  is subject to the condition that the Government should withdraw from the acquisition as provided for in s. 48 of the Act, by cancelling the notification under s. 6 dated July 18,  1961, the  Government  must be taken to have  withdrawn  from  the acquisition and cancelled the notification under s. 4  dated August  3, 1960 also and consequently the  Government  could not  issue the notification under s. 6 dated August 14  1964 without issuing a fresh notification under s. 4 and making a fresh  enquiry  under s. 5A.  Counsel  for  the  respondents disputed the correctness of this submission. It  is to be noticed that the notification under s. 6  dated July 18, 1961 stated that the land was required for a public purpose  at  the  expense  of  Shri  Krishiakunj  Government Servants  Co,operative Housing Society , The Government  had no  power to issue this notification.  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.  com- pany.  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 (1)  [1964] 6 S.C.R. 636; A.I.R. 1965 S.C. 427. 439 28,  1964  The  cancellation  was  in  recognition  of   the

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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 where, as in this case, the notification 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 substances 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. There  is nothing in s. 48, which precluded  the  Government from   treating   the  earlier   invalid   notification   as ineffective   and issuing  in  its  place   an   effective notification  under s. 6. Where the notification under s.  6 is  lawful and valid, a question may well arise whether  the Government  can  cancel  it  without  withdrawing  from  the acquisition, as provided for under s. 48.  But no such ques- tion arises in this case and we express no opinion on it. Counsel  for the appellants next submitted that  on  issuing the notification dated July 18, 1961 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. There is no substance in this contention.   The notification dated July 18, 1961 was invalid.  By the  issue of  this  notification, the Government had  not  effectively exercised  its power under s. 6. In the  circumstances,  the Government could well issue the fresh notification under  s. 6 dated August 14, 1964.           Counsel for the appellants next submitted that the notification under s. 6 must be issued without  unreasonable delay  after the issue of the notification under s.  4  and consequently,  the  notification dated August  14,  1964  is invalid,  as  it was issued after unreasonable  delay.  This contention was not raised in the High   Court. On  September 25, 1961, soon after the filing of the writ  petition,   the appellants obtained an injunction restraining the Government from  proceeding with the acquisition. We are informed  that this injunction continued for some time and was modified  at a later date. Until the modification of the injunction,  the Government could not take further steps in the  acquisition. The  question  whether there was unreasonable delay  in  the issuing  of the notification dated August 14, 1964  was  not put  in issue and was not investigated in the  Court  below. We, therefore, indicated in the course of the argument  that the appellants cannot be allowed to urge this point for  the first  time in this Court. We express no opinion one way  or the  other  whether  the Government is bound  to  issue  the notification under s. 6 without reasonable delay after B the issue of the notification under s. 4.      In  the High Court, the appellants contended  that  the public purpose set out in the notification dated August  14, 1964 was      M10  Sup.C.L/66-15 440 different   from   the  public  purpose  set  out   in   the notification  dated July 18, 1961 and the  Government  could not  issue  the notification dated August 14,  1964  without issuing  a  fresh notification under s. 4.  The  High  Court repelled this contention.  It found that the public  purpose set  out  in  the notification dated  August  14,  1964  was identical  with the public purpose set out in the  notifica- tion  dated  July  18,  1961.  This  finding  is  no  longer challenged before us. The appeal fails and is dismissed with costs. Appeal dismissed.. 441

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