STATE OF GUJARAT v. BHOGILAL KESHAVLAL & ANR (2)

Citation: [1980] 2 S.C.R. 284

Court: Supreme Court of India

Bench: P.N. SHINGAL, A.P. SEN

Case summary

(2) After the G· issue of the first notification under s. The challenge was justified and the notification was G liable to be quashed by the Court.

Judgment text

284 STATE OF GUJARAT LA , I f , ,. I ~ L v. • f BHOGILAL KESHAVLAL & ANR. November 21, 1979 B [P. N. SmNGHAL AND A. P. SEN, JJ. ] Ltmd Acquisition Act, 1894, SectiOM 4 & 6- Scope of. · The first respondent owned certain Land forming part of a town planning scheme, situated within the city limits. At the request of the second reapondentF a Cooperative Housing Society, the State Government issued a Notification~ under section 4 of the Act ori August 3, 1960 stating that the' land was likely · - c to be needed for a public purpose and it was foUowed by a farther notificatioll' of the State Goveroment 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.

·o The first respondent moved the High Court undor Article 226 of the Constitution cf¥U~enging the valadity 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 E 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 Mulfibhal Soneji v. State of Bombay [1964] 3 S. C. R. 686 has held that the Governme111. t ~ no power to issue a notification . F 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 e:xpeme,of the second respondent, the cooperative societY was therelore, invalid and the Govt. was justified in issuing the second notification under section 6 after removing the lacuna by providing for acquisition of the land for public purpo! le, at public expense• . G / [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 ptJl'll(li8e in question is a public purpose or not. It cannot be said that a Housing Schemefor a limited tmmber of persons cannot be construed to be a public Pllrtlote· When a notific&ti. on·under section 6 of the Act is in~id, the Govt. may treat it B as ineffective and issue a fresh notification under stction 6 af tlle Act and nothing in section 48 of the Act precludes the Government from ioing 110. [291 C-E} C- . J GUJARAT v. BHOGILAI.

KESHAVLAL (Sen, 1. ) 285 Girdharilal Amratlal Shodan & Ors. v. State of Gujarat & Ors. [1966] A · 3 S. C. R. 437, Sham Bdwri & Ors. v. State of 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. AI. 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 notifica- • ton. The High Court was therefore, not justified in observing that "the appellant had not explained the delay by 1lling any affidavit. " If there W! l6 no , ground taken, there could be no occasion for filing of any such affidavit. -r-- -- . [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 tile earlier notification is found to be ineffective. The delay of one year and four months between the date of ~ancellation 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 th~ Judgment and Order dated 254-1969 of the Gujarntl 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 Kailr;8N Mehta for Respondent No. 1· J. N. Shroff and H. S. Parihar for Respondent No. 2. The Judgment of the Court was delivered by p. SEN, J. -This appeal on' certificate from a judgment of the Gujarat High Court raises a question as to thd validity or otherwise of a fresh notification issued by the Government of Gujarat under s. 6 of the Land Acquisition Act, 1894, consequent upon an earlier notificationj . under s.

6 of the Act being discOIV'ered to be invalid. c The first respondent in this case owned certain land bearing Final J>lot 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 Hous,ing Society Ltd. , registered under the Bombay Co-operative Societies Act, 1925, Mw deemed to be registered under the Gujarat Co-operative Societies a· Act, 1961, formed with the object of enabling its members! to construct houses, the State Government on Augusr 3, 1960 issued a notifieatioii ____________________..... ~.... _,.... ~,·-·· ·• ' " vI. 286 SUPREME COURT REPORTS [1980] 2 s. c. R. A 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 Goverii· ment dated August 21, 1961 under s. 6 of the Act stating that the hmd was to lJe 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 Hoilsing Society. . The first respoo-~ dent moved the High Court under Art. 226 of the Constitution challeng- r ·c ing the validity of t11e 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 pelition was pending, the State Government by its notification dated May 'D 27, 1963 cancelled the notification under s. 6. On Septetmber 10.

1964 the State Government issued a fresh notification under s. 6 stating that the land was tO! be acquired at theJ public expense, for the public purpose specified- in column 4 of the schedule. The public pur- _.. (_pose specified in column 4 in the schedule was 'For housing scheme undertaken by Sri Ayodhyru Nagar C~operative Housing Society Ltd. ' TE The High Court following its earlier decision in Dosabhai Ratansha Keravala v. State of Gujdl'at & Ors. (l) struck down the second notification unde. r. s. 6 dated september 10, 1964. 'It held inter alia that (1) 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 F could have proceeded to complete the acquisition tmder it but, 'under a false sense ofl 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 apprehensi0111 as to its validity, the Government need not have taken one year and ten months to do so. (2) After the G· issue of the first notification under s. 6 on August 21, 1961, the- notifi- · cation dated August 3, 1960 under s. 4 was exhausted and, therefore, could not be used to support the second notification issmxl under s. 6 . on September 11, 1964. (3) The cancellation of the fir~t 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 11 for supporting the second notification onder s. 6. The second notifi- (1) (1970) 11 Guj. L. R. 361. i- ·.. J .. GUJARAT V. BHOGILAL KESHAVLAL (Sen, J. ) 287 cation under s. 6 not being supported by any notification under s. 4 WaS consequently invalid. (4) A notification unde. r s.

6 in order to be valid must follow within a reasonable time after the issue of a notifica- • tion under s. 4. The notification under s. 4 was issued; on August 3, i960 and the socond notification under s. 6 on September l 0, 1964 and there was, thus an interval of about fo\W years and one month bet- B ween the two notifications. This interval of time. could not be regarded as reasonable. Even tested by the yardstick of reasonable tim~ provided by the legislature in the second proviso introduced in s. 6 _! :>y 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 dearly unc reasonable. The socond notification must, therefore, be beld to be invalid on this ground also. We are clearly of the opinion that the High Court was in error in striking down the second notification under s. 6 issued on September 1 10, 196 4. in Valjibhai Muljibhai Soneji v.

State of Bombay( ) D the Court held that the Government has no power to issue a notifica- . tion 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 socond respondent, the Co-operative Society, was, therefore, invalid. The State Government was, there- E fore; justified in issuing the second notification under s. 6 after remov- . ing the lacuna i. e. , by providing for acquisition of the land for the said : ~ public purpose, at public expense. · · In an endeavour to suppo. rt the ju~gment, counsel for the first respondent advanced a three~fold contention. It was urged, firstly, that F su~cessive notifications cannot be issued under s. 6 placing reliance on State of Madhya Pradesh & Ors. v. Vishnu Prasad Sharma & Ors.

(2) 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. G • 1 Further, it was urged that the Act was not retrospective in oper. ation ~ IJ- .. and, therefore, the validity of the second notific" court Jn· ! t-fusam1. \'llll's case utsltngUJs. t·. · · ·h··'t-u the dectston 10 State of G Madhya Pradesh & O;s. v. Vishnu PrasaJ SJwrm~ &. Ors.. (supra) by qu0t' bo The d~iston m Vzsltnu Prasad . Jng the passage ref~?. rrt'd to a ve. · .. . . Sharrnu·, case is not an authority for the proposttion that where n notific-.. ttion unucr s is found to be invaliu it cannot be fot. lowcd by 6 ~on ~nder s.. 6. In fact, the decision of thej Ihgh Court u OJ {1976} Supp. S. C. R. 28. (2) [1961] 2 S. C. R. 459. t3) A. I. R. 1970 S. C. 984. (. H A. I. R. 1972 S. C. 2390.

SUPREME COURT REPORTS (1980] 2 S. C. R. 292 A runs counter to what it had observed in Dosabhai Ratt~nsha 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 pur- .. B pose 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 nQ11 taken any such C 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 unJer s. 6, presum- I ! ) ably on the ground tlmt the acquisition being for a public purpose, ·'f could not be made at the expense of tho second respondent. The -.. I challenge was justified and the Smte 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 E ~ from the acquisition. Thereafter, thC! Government issued a fresh noti- · I fication. under s. 6 making a declaration for acquisition of the bnd for It; • a public purpose at public e:"C:pcnse. There is nothing in the Act which \ precludes tbe Government from issuing a fresh notification under s. 6. if the earlier notification is found to be ineffective. ThCl delay of one year and fou.

r months between the date of cancellation and the issue of 1' the second notification c:nnnot be regarded to b" unreasonable, in the facts and circumsmnces of the case. In somewhat similar circumstan~ ces, this Court recently in Gujarat Stat~ Transport Corpn. v. Valji ! vJulii Soneji(') held the delay of about fifteen years in making the seco. nd notification under s. 6 not to bo unreasonable. We cunnot, therefore, G uphold the High Court's decision that tho second notification must be struck down on the ground of delay. In the result, the appeal succeeds and' is allowed with costs, tbe ju<lJ! mCnt of the High Court is ~et asiJc, and the writ petition filed by the first re~pondcnt is dismis~ed. Responuent No. 1 shall hear. the costs. II N. K. A. Appeal a{lowed. (I) (! 979] J S. C. R. 20!. -----------.