State of Gujarat v. Musamiyan Imam Haider Bux Razvi and Anr. Etc.

t JASWANT SINGH, J. These three appeals Nos. 1870 of 1970,

1871 of 1970 and 1445 of 1971 by certificate granted hy the High Court of Gujarat at Ahmedabad under Article 133 ( 1) (b) & ( c) of the Constitution of India against its common judgment and order dated April 25, 1969 shall be disposed of by this judgment.

The facts giving rise to these appeals are : On May 20, 1961, the Government of Gujarat issued a notification und,er section 4 of the Land Acquisition Act, 1894 (hereinafter referred to as 'the Act') de-daring that certain pieces of land in village Vasana, Ta,Juka City, District Ahmedabad specified in Schedule thereto were likely to be needed for a public purpose viz. for construction of houses for mem-hers of Yogeshwarnagar Co-operative Housing Society Limited, Ahmedabad. On June 18, 1962, respondent No. 1 in Civil Appeal No. 1445 of 1971, owners of some pieces of the aforesaid land filed Special Civil Application No. 564 of 1962 in the High Court of Gujarat under Article 226 of the Constitution challenging the validity of the aforesaid notification dated May .20, 1961 made under section 4 of the Act and seeking to restrain the Government from proceeding further with the acquisition proceedings contending inter alia that the land could not be acquired for the benefit of the Company in which the public was not directly interested. Interim injunction sought by tl.1e petitioner in that petition having been refused, the Additional Special Land Acquisition Officer, Ahmedabad, appellant No. 2 in these appeals proceeded to hold the requisite enquiry under section SA of the Act and submitted report to the Government on a consideration whereof the latter issued a notification under section 6 of the Act on April 29, 1963. The notification inter alia stated that the lands men-tioned in the Schedule thereto were needed to be acquired at the pub-J lie expense for the public purpose specified in column 4 of the Schedule

to the notification viz., the scheme undertaken by Shri Yogeshwar-nagar Co-operative Housing Society Limited with the sanction of the Government. Notices under section 9(i) of the Act were served and the Special Land Acquisition Officer after holding the requisite enquiry made an award on December 21, 1963 determining the amount of compensation payable by the Government to the owners of the land. On demand beiug made for possession of land, respondent No. I in ,i Civil Appeal No, 1870 of 1970, who is the owner of some pieces of

land sought to be acquired brought another Special Civil Application No. 1100 of 1963 under Article 226 of the Constitution in the High Court challenging the ~foresaid notification under sections 4 and 6 of the Act and on his application. the High Court passed an interim order restraining the Government from taking possession of the iands. On April 15, ! 966, the Government of Gujarat in supersession of the earlier resolution dated December 21, 1962 whereby it had sanctioned rupee one towards the cost of acquisition, passed another resolution sanctioning contribution of Rs. 500/- towards the cost of acquic.ition. Considering that the notification dated April 29, 1963, issued by it j under section 6 of the Act was illegal and invalid, the Govcrnnrcrrt of Gujarat by notification dated April 28, 1966, cancelled its •.·arher notification dated April 29, 1963 issued under section 6 of the Act and issued a fresh notification in respect of the same pieces of land under section 6 of the Act on June 6, 1966. Respondent No. 1 in Civil Appeal No. 1445 of 1971 and petitioner in Special Civil Application No. 564 of 1962 thereupon amended its application with the leave of the Court so as to include a chaUenge to the validity of the fresh notifi-cation under section 6 of the Act; The petitioner in the aforesaid Special Civil Application No. 1100 of 1963 did not amend his applica-tion but filed a fresh petition under Article 226 of the Constitution being Special Civil Application No. 218 of 1968 challenging the fresh notification under section 6 of the Act. Yet another petition under Article 226 of the Constitution being Special Civil Applicauon No. 1441 of 1966 was filed in the High Court on November 20, 1966 by respondent No. 1 in Civil Appeal No. 1871 of 1970 challenging the validity of the fresh notification dated June 6, 1966 issued under sec-tion 5 of the Act. All these petitions were heard together. While the High Court by common judgment dated April 25, 1969 dismissed petition No. 1100 of 1963 as infructuous in view of the fresh notifica-tion under section 6 of the Act, it allowed the other three aforesaid petitions following its earlier decision in Special Civil Application Nos. 316, 625 and 811 of 1965 and quashed the fresh notification dated June 6. 1966 issued by the Government of Gujarat under sectinn 6 of the Act holding inter alia that the "cancellation of the first section 6 notification would, in any event, tantamount to withdrawal from acquisition and no subsequent notification under sectic:m 6 0f the Act could, thereafter be issued without a fresh notification under section 4 of the Act." The appellants thereupon applied for and obtained certi-ficate referred to above. It is how these appeals are before us.

Although two important points were raised in the aforesaid writ petitions viz. ( 1) whether the acquisition of land for Co-operative Housing Society is a public purpose and (2) whether the Government could cancel the notification dated April 29, 1963 issued by it under section 6 of the Act and issue a fresh notification dated April 28, 1966 under the said section of the Act. the first point does not survive and has rightly not been canvassed before us in view of the decisions of this Court in Ratilal Shankerbhai & Ors. v. Slate of Gujarat & Ors.!') Pandit Jhandu Lal & Ors. v. The State af Punjab(') and Ram

(1) A. I. R. 1970 S. C. 984

(2) [1961] '.! s. c. 1~ 459.

GUJARAT STATE v. M. IMAM (Jaswant Singh, l.) 31 Swarup v. The District Land Acquisition Officer, Aligarh & Ors.(') In these cases, it has been made clear that ordinarily the Government is the best authority to determine whether the purpose in questit>n is a public purpose or not; it cannot be contended that a housing scheme for a limited number of persons cannot be cons<dercd as a public pur-pose; and the need of a section of the public may be a public purpose.

The second contention raised on behalf of the contesting respon-dents that the cancellation of the first section 6 notification amounts to withdrawal from acqu:sition and no subsequent notification under section 6 of the Act can thereafter be issued without a fresh notifica-tion under section 4 of the Act cannct be countenanced in view ot the decision of this Court in Girdharilal Amratlal Shodan and Ors. v. State of Gujarat and Ors.(') where it was categorically held that when a notification nuder section 6 of the Act is invalid, the Government may treat it as ineffective and issue in its place a fresh notification under section 6 and that nothing in section 48 of the Act precludes the Gov-ernment from doing so and that the canceHation of the earlier notifica-tion is only a recognition of the invalidity of that notification. The following observations made therein are apposite :

"Counsel for the. appellants next submitted that on issuing the notification dated July 18, 1961 (under section 6), the power of the State Government to issue a notifica-tion under section 6 was exhausted and the. Government could not issue a fresh notification under section 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 section 6. In the circumstances, the Government could well issue the fresh notification under section 6 dated August 14, 1964."

No help can be derived by the contesting respondents from the decision of this Court in State of Madhya Pradesh and Ors. v. Vishnu Prasad Sharma and Ors.( 3 ) which turned on another point. In that case after the issue of the notification under section 4 ( 1) of the Act, _, a number of nofficat'ons in respect 0f different items of land included

in the locality specified in the notification under section 4 ( 1) of the Act were issued under section 6. The following observations made in that case are pertinent :-

"But as we read these sections (viz. sections 4, SA and 6) together we can only find that the scheme is that section 4 specifies the •locality, then there may be survey and draw-ing of maps of the land and the consideration, whether the land is adapted for the purpose for which it has to be acquir-ed, followed by objections and making up of its mind by the Government that what particular land out of that locality it needs. This is followed by a declaration under section 6

(I) A. (. R. 1972 S. C. 22GO.

(2) [1956]' s. c. '1. 437.

6pecifying the particular land needed and that in our opinion completes the process ....... At the stage of section 4 the land is not particularised but only the locality is mentioned at the stage of section 6 the land in the locality is particulari-sed ....... The sequence of events from a notificatiun of the intention to acquire [section 4(1)] to the declaration under section 6 unmistakably leads one to the reasonable con-clnsion that when once a declaration under section 6 particu-larising the area out of the area in the locality specified in the notification nnder section 4(1) is issued, the remaining 11011-particularised area stands automatically released''.

Tum in view of the decision of this Court iu Girdharilal A mratlal Shoda11'3 case (supra), the impugned judgment of the Gujarat High Court cannot be allowed to stand. In the result, the appeals are allowed and the said judgment of the High Court is quashed. The parties are left to bear and pay their own costs in these appeal~.

CIVIL APPELLATE JURISDICTION : Civil App~ls Nos. 1870 and 1871 of 1970 and 1445 of 1971.

Appeal from the Jud.gmen\ and Order dated 25-4-1969 of the Gujarat High Court in Special Civil Appeals Nos. 2l 8/6R and 1441 /66 respectively and

D. V. Patel and M. N. Shroff, for the appellants in all the appeals. S. T. Desai (In CA 1871), P. H. Parekh & Manju Jelley for Respondents.

S. M. Jain, S. K. Jain and lnder Makwana for Respondent l in CAs. 1871 and 1445.

P. K. Pillai for Respondent 2 and 3 in CA 1871.

l