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PETITIONER: VIJAY COTTON & OIL MILLS LTD.

       Vs.

RESPONDENT: THE STATE OF GUJARAT

DATE OF JUDGMENT: 11/09/1968

BENCH:

ACT: Land  Acquisition Act, 1894, ss. 4(1) and  6(1)-Declarations under-Circumstances  in  which a declaration only  under  s. 6(1)  may  be treated as a composite declaration  under  ss. 4(1) and 6(1).

HEADNOTE: In  1949  the  Government took possession  of  certain  land belonging to the appellant under an arrangement whereby  the Government  was to give to the appellant in  exchange  other suitable  lands  of equal value. After  the  Government  had constructed  some  buildings  on the  land,  it  decided  to acquire  the  land  compulsorily.   On  February  1,   1959, the  .Government issued a notification under s. 6(1) of  the Land  Acquisition  Act, 1894, declaring that  the  land  was needed  for public purposes and stating that  possession  of the land had already been taken. The Collector made an award on  April 22, 1957 but the appellant objected to the  amount of compensation and the Collector, on his application,  made a reference to the Court under s. 18. At the hearing of  the reference   before  the  District  Judge,   the   Government concluded  that  the appellant was entitled  to  the  market value  of the land as on February 1, 1955 and  the  District Judge  awarded  compensation  accordingly.   Thereafter  the Government  filed an appeal in the High Court and  contended that  in the absence of a notification under s.   4(1);   no compensation  could  be awarded to the appellant.  The  High Court  allowed  the appeal and set aside the  order  of  the District Judge. On appeal to this Court, HELD: Allowing the appeal:     The Government having constructed buildings on the  land was not in a position to restore it and had no option but to acquire it compulsorily. With a view to make the acquisition the  Government published a notification under sec. 6(1)  on February  1,  1955.  On finding that there was  no  separate notification  under  sec. 4(1) the Government had  a  choice between  two courses.  It could say that in the  absence  of such a notification the acquisition was invalid and that  no compensation  could be awarded under sec. 23.  If it did  so it would be compelled to start fresh acquisition proceedings and  pay  a larger sum by way of   compensation.  The  other course was to treat the notification of February 1, 1955  as a  composite  one  under sections 4(1)  and  6(1)  with  the consent of the appellant and to say that the market value of the   land  on  that  day  could  be  awarded  by   way   of compensation.   The Government elected to choose the  letter course  and the appellant agreed to accept  compensation  on that footing.  Having regard to the consent of both parties,

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it could properly be assumed that the procedure of s. 5A had been  waived by the appellant and that the  notification  of February  1, 1955 could be treated as a composite one  under ss.  4(1)  and  6(1).  The District  Judge  could  therefore lawfully award the market value of the land on that day. [63 C-G]      Somavanti.  v. State of Punjab,  [1963] 2 S.C.R.   775, 821-823   and  Toronto Corpr. v. Russell, [1908]  A.C.  493; referred to. 61     Furthermore,  relying  on  the  concession made  by  the Government the appellant had acted to its detriment in  that it did not challenge the acquisition and the Government  had come  to be in adverse possession of the land for more  than 12  years.  In these circumstances the Government could  not be   permitted  to  resile  from  the  election   which   it deliberately  made  and to say that the  appellant  was  not entitled  to  the market value of the land  on  February  1, 1955. [63 G-H] Rama  Charan  Chakrabarty  v. Nimai Mondal,  15  C.L.J.  58; referred to,

JUDGMENT: CIVIL APPELLATE JURISDICTION: Civil Appeal No. 1948 of 1966.     Appeal from the judgment and decree dated March 22, 1965 of the Gujarat High Court in First Appeal No. 718 of 1960.     Purshottam  Trikamdas, M.H. Chhatrapati and A.K.  Varma, for the appellant.     G.L.  Sanghi,  Urmila  Kapur and  S.P.  Nayar,  for  the respondent. The Judgment of the Court was delivered by     Bachawat,  J.   The  appellant was  the  owner  of  land bearing survey No. 910 situated on the Bhachau-Rahapur  Road in  Kutch  District.   In November 1949  the  Government  of Kutch   took  possession of the land  under  an  arrangement that the Government would give to the appellant in  exchange other suitable lands of equal value.  On that date Kutch was part  of  the territory of India and the  Land  Acquisition, Act, 1894 was in force there. After taking possession of the land  the  Government constructed thereon  the  State  Guest House  and the Court House.  Thereafter the  Government  was neither  willing  to  return  the land  nor  to  give  other suitable land in exchange and instead it decided to  acquire the land compulsorily.  On February 1, 1955  the  Government issued  a  notification  under  sec. 6  (1  )  of  the  Land Acquisition  Act  declaring  that the land  was  needed  for public   purposes  stating that possession of the  land  had already  been  taken  over  and directing the  Collector  to take  action  under sec. 7.  The necessary action  was  duly taken  and  in due course the Collector made  his  award  on April  22,  1957.  The appellant objected to the  amount  of compensation and asked the Collector to make a reference  to the  Court  under  sec. 18.   The Collector  duly  made  the reference.   At  the  hearing of the  reference  before  the District  Judge,  Kutch, the Government  conceded  that  the appellant  was entitled to  the market value of the land  as on   February   1,  1955.   The   District   Judge   awarded compensation accordingly.  The Government filed an appeal in the High Court.  At the hearing of the appeal the Government contended  that in the absence of a notification under  sec. 4(  1 ), no compensation could be awarded to the  appellant. The High Court accepted the contention and observed that the appellant would be at liberty to contend in other proceed-

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62 ings  that  the  acquisition was bad in  the  absence  of  a notification under sec. 4( 1 ).  In this view of the  matter the   High Court allowed the appeal and set aside the  order of  the  District Judge. The present appeal has  been  filed after obtaining a certificate from the High Court.     The main question arising in this appeal is whether  the Government  can take up inconsistent positions in  Court  at successive stages of the same litigation to the detriment of its opponent and whether having conceded before the District Judge that the appellant was entitled to the market value of the land on February 1, 1955 it could at the appellate stage resile  from  that position and contend that  there  was  no notification   under  sec.  4(1)  on  that  date  and   that consequently   its   opponent  was  not  entitled   to   any compensation.     The  scheme of the Land Acquisition Act  is  well-known. If the Government desires to acquire land, it has to issue a preliminary  notification under sec. 4( 1 )  declaring  that the land is needed or is likely to be needed for any  public purpose.  This  notification has to, be issued in  order  to give  an opportunity to all persons interested in  the  land under s. 5A( 1 ) to object to the acquisition within 30 days after  the  issue of the notification..  After  hearing  the objections  the  Collector has to make a report  under  sec. 5A(2). On considering this report the Government may issue a notification  under sec. 6 (1 ) declaring that the  land  is needed for a public purpose.  In cases covered by see. 17(4) the   Government may direct that the provisions of  sec.  5A shall not apply and if it does so a declaration may be  made under  sec. 6( 1 ) at any time after the publication of  the notification under sec. 4 (1 ).  When the Collector has made an award under sec. 11, he may under see. 16 take possession of  the  land  which  thereupon  vests  in  the  Government. Section  18  requires the Collector to make a  reference  to Court  on  the application of any person interested  in  the land who has not accepted the award.  It is the market value of  the  land  at  the  date  of  the  publication  of   the notification  under  sec.  4( 1 ) that  can  be  awarded  as compensation by the Collector under sec. 11 and by the Court under sec. 23.  These provisions show that the issue of  the notification under sec. 4(1) is a condition precedent to the acquisition of the land.  Where the procedure under sec.  5A has  to. be followed, there must necessarily be an  interval of  time  between the issue of the notification  under  sec. 4(1)  and the notification under sec. 6(1).  But where  sec. 5A  does  not stand in the way, the prior publication  of  a notification  under  4( 1 ) is not a condition precedent  to the  publication of a notification under sec. 6( 1  ).   For this  reason  this  Court  held in  Somavanti  v.  State  of Punjab(1)  that where an order was passed [1963]  2,  S.C.R. 775, 821-823. 63 under  sec. 17(4) dispensing with the procedure  Under  sec. 5A,  it  was lawful for the Government to publish  both  the notifications on the same date.       The  procedure  under sec. 5A being entirely  for  the benefit  of    the persons interested in the land  they  may waive it, see Toronto    Vol. 36, p. 444: "A statutory right which   is  granted  a  privilege  may  be   waived   either altogether   or  in  a particular  case."   If  all  persons interested  in the land waive the benefit of  the  procedure under sec. 5A the Government may lawfully issue a  composite notification under secs. 4 ( 1 ) and 6 ( 1 ).       In  this background let us examine ,the facts  of  the

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present  case.  The Government having constructed  buildings on the land was not in a position to restore it and had:  no option but to acquire it compulsorily.  With a view to  make the  acquisition  the Government  published  a  notification under sec. 6( 1 ) on February 1, 1955. On finding that there was  no  separate   notification   under sec.  4(  1  )  the Government had a choice between two courses of conduct.   It could  say  that in the absence of such a  notification  the acquisition  was invalid and that no compensation could   be awarded  under sec. 23.  If it did so it would be  compelled to start fresh acquisition proceedings and pay a larger  sum by  way of compensation.  The other course was to treat  the notification  of February 1, 1955 as. a composite one  under secs. 4(1) and 6(1)   with the consent of the appellant  and to  say that the market value of the land on that day  could be  awarded by way of compensation.  The Government  elected to  choose  the  latter  course.   At  the  hearing  of  the reference,  it conceded that the appellant was  entitled  to the  market  value  of the land on  February  1,  1955.  The appellant  agreed  to accept compensation on  that  footing. Having    regard to the consent of both parties, it could  properly be  assumed that the procedure of s. 5A had1 been waived  by the appellant and that the notification of February 1,  1955 could be treated as a composite one under ss. 4 ( 1 ) and  6 (  1 ).  The District Judge could therefore  lawfully  award the  market  value  of the land that day.   Relying  on  the concession  made by the Government, the appellant  acted  to its  detriment.  It did not  challenge  the acquisition  and took  no steps to recover the land. The result is  that  the Government  has been in adverse possession of the  land  for more  than 12 years since 1949 and has gained  an  advantage which it could not otherwise obtain.  In these.circumstances the  Government  cannot  be permitted  to  resile  from  the election  which  it deliberately made and to  say  that  the appellant is not entitled   to the market value of the  land on  February 1, 1955.  A party litigant cannot be  permitted to take up inconsistent positions in (1) [1908] A.C. 493. 64 Court  to the deteriment of his opponents [see  Rama  Charan Chakrabarty  v. Nimai Mondal(1), Bigelow on  Estoppel,   6th ed.,  page  783].  He cannot  approbate  or  reprobate  (see Halsbury’s  Laws  of England, 3rd, ed., vol. 15  art.  340). The  concession  cannot now be retracted.   The  High  Court should have disposed of the appeal before it on the  footing that  the appellant is entitled to the market value  of  the land  on February 1, 1955.  As the High Court did  not  hear the appeal on the merits, the matter must be remanded to  it for final disposal.     In  the result, the appeal is allowed, the order of  the High  Court is set aside and the matter is remanded  to  the High Court for disposal on the merits.  The respondent shall pay to the appellant the costs of the appeal in this Court. R.K.P.S.                                              Appeal allowed. (1) 15 C.L.J. 58. 65