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PETITIONER: RAGHUNATH & ORS.

       Vs.

RESPONDENT: STATE OF MAHARASHTRA & ORS.

DATE OF JUDGMENT07/04/1988

BENCH: RANGNATHAN, S. BENCH: RANGNATHAN, S. MUKHARJI, SABYASACHI (J)

CITATION:  1988 AIR 1615            1988 SCC  (3) 294  JT 1988 (2)    32        1988 SCALE  (1)661  CITATOR INFO :  RF         1990 SC 731  (9)

ACT:      Land Acquisition  Act, 1894:  Sections  4  and  6-Valid declaration under  section  6-Scope  of  Notification  under section 4  gets  exhausted-Not  so  when  declaration  under section  6   is  invalid,   ineffective  or   infructuous-No distinction between  declaration held  invalid by  court and declaration withdrawn  by government when some illegality is pointed out.

HEADNOTE: %      The appellants’  lands were  among those  sought to  be acquired under  the Land Acquisition Act, 1894 by means of a notification under  section 4,  followed  by  a  declaration under section  6. The  Notification and the declaration were challenged by  way of  a Writ  Petition on  the short ground that the  appellants had  not been  heard before  making the declaration. When  the Writ  Petition was heard, a statement on behalf of the Government was made, to the effect that the notification under  section 6  was being  withdrawn. On  the basis of this statement the Writ Petition was disposed of as withdrawn.  Thereafter   the  appellants  were  heard  under section 5A  and a  fresh declaration  under  section  6  was issued. The  appellants filed  a  Writ  Petition  and  again challenged the  Notification under  section 4 as vitiated by mala fides  and non-application  of  mind.  The  High  Court rejected the  same. Another  question raised before the High Court was that the withdrawal of the earlier declaration had the automatic  effect of  rendering the  Notification  under section  4  ineffective  and  infructuous.  The  High  Court rejected that  contention as  well.  Hence  this  appeal  by special leave.      Dismissing the appeal, this Court, ^      HELD: 1.  Once  there  is  a  valid  declaration  under section 6,  the scope  of the  notification under  section 4 will get exhausted. This principle cannot clearly apply to a case where  the declaration  under section  6 proves  to  be invalid, ineffective  or infructuous  for some reason. There is no  distinction between  a case where a declaration under

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section 6  is declared  invalid by  the Court  and a case in which the  Government itself withdraws the declaration under section 6  when some  obvious  illegality  is  pointed  out. [444E, 445B] 442      Girdhari Lal  Amrit Lal  v. State,  [1966] 3  SCR  437; State v.  Haider Bux, [1976] 3 SCC 536 and State v. Bhogilal Keshavlal, [1980] 2 SCR 284 followed.      State  v.  Vishnu  Prasad  Sharma,  [1966]  3  SCR  557 distinguished.      Ajit Singh v. State, AIR 1972 Bombay 177 disapproved.      2. Between  the date  of withdrawal of the earlier Writ Petition and  the issue  of  the  second  declaration  under section 6,  the Government  had issued  a fresh Notification under section  4 for  the acquisition  of certain lands. The lands in  the two  Notifications  under  section  4  do  not completely overlap,  but some  fields are common in both. No declaration under  section 6  had been issued in furtherance of the  second notification  under section  4 when  the High Court heard  the matter.  In respect of the lands covered by the first  notification  under  section  4  which  are  also covered by  or comprised  in the  second notification  under section 4,  further proceedings  regarding acquisition shall be taken  in accordance  with law  only in  pursuance of the latter notification  and the  proceedings initiated  by  the first notification should be deemed to have been superseded. [445C-F]

JUDGMENT:      CIVIL APPELLATE  JURISDICTION: Civil Appeal No. 1274 of 1988.      From the  Judgment and  order dated  7.10.1986  of  the Bombay High Court in W.P. No. 1143 of 1985.      Masodkar and A.K. Gupta for the Appellant.      V.S. Desai and A.S. Bhasme for the Respondents      The Judgment of the Court was delivered by      RANGANATHAN, J.  1. We  grant special leave and proceed to dispose of the appeal after hearing both counsel      2. The  point raised in the appeal is a very short one. The lands,  belonging to  the petitioners  were among  those sought to  be acquired  under the Land Acquisition Act, 1894 (hereinafter referred  to  as  ’the  Act’)  by  means  of  a notification under Section 4 issued on 22nd June, 1982. This was followed  up by a declaration under Section 6 dated 15th March,   1983.   The   petitioners   challenged   both   the notification and the 443 declaration in  writ petition No 947 of 1983 before the High Court The notification under Section 4 was challenged on the ground of  mala fides and the declaration under Section 6 on the short  ground that  the petitioners’  objections had not been heard  before the  making of the declaration. When this writ petition  came up  for hearing, a statement was made on behalf of the Government that the notification under Section 6 was  being withdrawn.  On this  statement being  made, the writ petition  was withdrawn  and disposed  of  accordingly. Thereafter the  petitioners were  heard under Section 5 A of the Act  and a  fresh declaration under Section 6 was issued on 4th April, 1985.      3. The  petitioners again  filed a writ petition in the High Court,  being writ  petition  no.  1143  of  1985,  the judgment in  which forms  the subject  matter of the present appeal. In  this writ  petition they  again  challenged  the

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notification under  Section 4  as vitiated by mala fides and non-application of  mind. The  High Court has found no merit in this  contention and  rejected the same. We see no reason to interfere with this conclusion of the High Court.      4. However,  another question  was also  raised by  the petitioners, namely,  that the  withdrawal  of  the  earlier declaration dated 15.3.1983 had the automatic effect of also rendering the  notification under  Section 4 dated 22.6.1982 ineffective and infructuous. On the strength of the decision of this Court in State v. Vishnu Prasad Sharma, [1966] 3 SCR 557, it was contended that, once a declaration under section 6 was  issued, the  notification under  Section 4  exhausted itself. It  made  no  difference,  it  was  said,  that  the notification issued  under S. 6 had been withdrawn. Reliance was also  placed on the decision of the Bombay High Court in Ajit Singh  v. State, AIR 1972 Bombay 177 in support of this proposition. This  contention, however,  was rejected by the High Court and hence the present appeal.      5. We  are of  opinion that  the decision  of the  High Court is correct and should be upheld. The Bench has rightly pointed out  that Ajit  Singh’s case  (supra) had  failed to take note  of the  decisions of  this Court  in Girdhari Lal Amrit Lal  v. State,  [1966] 3 SCR 437: State v. Haider Bux, [1976] 3  SCC 536  and State v. Bhogilal Keshavlal, [1980] 2 SCR 284 and therefore, does not represent the correct law.      6. In  Vishnu Prasad Sharma’s case (supra) the question for consideration  of this  Court was whether there could be successive declarations  in respect  of various  parcels  of land  covered   by  a   notification  under   Section  4(1). Considering the scheme of the Act as it then stood, 444 the Court  held that  the Act envisaged a single declaration under Section 6 in respect of a notification under Section 4 and  that,   when  once   a  declaration   under  Section  6 particularising the  area in  the locality  specified in the notification under  Section 4(1)  is issued,  the  remaining non-particularised area  stands automatically  released. The Court also  referred to  the provisions of Section 48 of the Act in  this context.  The following  observations appear in the judgment of Sarkar J.           ".....  It   seems  to  me  that  if  the  correct           interpretation is that only one declaration can be           made under  S. 6,  that  also  would  exhaust  the           notification under  S. 4;  that notification would           no longer  remain in  force to  justify successive           declarations under  S. 6  in respect  of different           areas included  in it. There is nothing in the Act           to support  the view  that it is only a withdrawal           under S.  48 that  puts a  notification under S. 4           completely out  of the way. The effect of s. 48 is           to withdraw the acquisition proceedings. including           the notification  under s. 4 with which it started           We are  concerned not  with a  withdrawal but with           the force  of a  notification under  S.  4  having           become exhausted "       7. The High Court was correct in pointing out that the above observations  were made  in the  context  of  a  valid declaration under  S 6  The Court  held that once there is a valid declaration  under S. 6, the scope of the notification under S  4 will  got exhausted This principle cannot clearly apply to a case where the declaration under S 6 proves to be invalid. ineffective  or infructuous for some reason. It has been so  held by  this Court  in a  number of  decisions. In Girdhari Lal  Amrir Lal’s  case (supra)  which  was  decided about a  week earlier  to Vishnu  Prasad Sharma’s case, this

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Court held that. where a notification under S. 6 is invalid, the Government  may treat it as ineffective and issue in its place a  fresh notification  under S  6 and  that  there  is nothing in  S 48  of the Act to preclude the Government from doing so This view has been repeated in State v. Haider Bux, [1976] 3  SCC 536  and State v. Bhogilal Keshavlal, [1980] 2 SCR 284.  These  decisions  have  clearly  pointed  out  the distinction between  a case  where  there  is  an  effective declaration under S. 6 (which precludes the issue of further declarations in  respect of  other parts of the land covered by  the   notification  under   S.  4  not  covered  by  the declaration issued  under S  6) and  a case  where? for some reason, the declaration under S 6 is invalid.      8. It  is true  that in  the present  case there was no occasion for  the High Court in the earlier writ petition to pronounce the declaration 445 dated 15.3.1983  to be  invalid. But  the  validity  of  the declaration had  been challenged  on  the  ground  that  the petitioners had not been heard under S. 5A, an irregularity, which ex  facie rendered  the declaration invalid. The State Government obviously  acknowledged  this  and  withdrew  the declaration on  its own  instead of  obtaining a judgment to that effect  from the  Court.  In  principle,  there  is  no distinction between a case where a declaration under S. 6 is declared invalid  by the  Court and  a  case  in  which  the Government itself  withdraws the declaration under S. 6 when some obvious  illegality is  pointed out. The point in issue in this  appeal is  thus  directly  governed  by  the  three earlier decisions of this Court and the High Court was fully justified in dismissing the writ petition on this ground.      9. Before  concluding we must refer to one circumstance which was  brought to  our notice by learned counsel for the petitioners and  which has also been noticed in the judgment of the  High Court.  It appears  that, between  the date  of withdrawal  of  the  earlier  writ  petition  (namely,  23rd August, 1983)  and the issue of the second declaration under S. 6  (namely, 4.4.1985),  the Government had issued a fresh notification under  S. 4  for  the  acquisition  of  certain lands. The  lands in the two notifications under S. 4 do not completely overlap  but it  appears  that  some  fields  are common in  both. No  declaration under  S. 6 appears to have been issued  in furtherance of the second notification under S. 4  when the  High Court heard the matter. Learned counsel for the  petitioners points out that, at least in respect of such of  the lands  comprised in the S. 4 notification dated 22.6.1982 as are also covered by the subsequent notification under S.  4, it  is  legitimate  to  infer  that  the  State Government has  superseded the  earlier notification  by the latter one.  This contention  is clearly  well  founded.  We would, therefore,  like to  make it clear that in respect of the lands covered by the first notification under S. 4 which are also covered by or comprised in, the second notification under S. 4, further proceedings regarding acquisition should be taken,  in accordance  with law, only in pursuance of the latter notification and the proceedings initiated in respect of such  lands by  the first  notification  dated  22.6.1982 should be deemed to have been superseded.      10. With  the above  clarification, we affirm the order of  the   High  Court   had  dismiss  this  appeal.  In  the circumstances, however, we make no order to costs. G.N.                                       Appeal dismissed. 446

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