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Girdharlal Amratlal Shodhan and ors. Vs. State of Gujarat and ors. - Court Judgment

LegalCrystal Citation
SubjectProperty
CourtGujarat High Court
Decided On
Judge
Reported in(1965)6GLR569
AppellantGirdharlal Amratlal Shodhan and ors.
RespondentState of Gujarat and ors.
Cases ReferredMowasi v. State of Uttar Pradesh
Excerpt:
- - 1. this petition raises an interesting question as to the effect of the cancellation of a notification issued under section 6 of the land acquisition act i of 1894 in relation to a notification issued under section 4 and of the issuance of another notification thereafter under section 6 without issuing a fresh notification under section 4 and without holding a fresh enquiry under section 5a. august 3 1960 the government issued a notification under section 4 stating therein that the land specified in the schedule thereto was likely to be needed for a public purpose namely for the construction of houses for the third respondent society that notification also stated that if the government were to be satisfied that the said land was needed for the aforesaid purpose a final notification.....j.m. shelat, c.j.1. this petition raises an interesting question as to the effect of the cancellation of a notification issued under section 6 of the land acquisition act i of 1894 in relation to a notification issued under section 4 and of the issuance of another notification thereafter under section 6 without issuing a fresh notification under section 4 and without holding a fresh enquiry under section 5a. the question arises from the following facts:2. petitioner no. 1 is the father of petitioners 2 to 6 and is the trustee of a private trust called bai parvati trust. the trust was created by the first petitioner in 1934 in memory of and to fulfill the last wishes of his wife parvatibai who died some time prior to 1934 for a provision of five bungalows in ahmedabad for the aforesaid.....
Judgment:

J.M. Shelat, C.J.

1. This petition raises an interesting question as to the effect of the cancellation of a notification issued under Section 6 of the Land Acquisition Act I of 1894 in relation to a notification issued under Section 4 and of the issuance of another notification thereafter under Section 6 without issuing a fresh notification under Section 4 and without holding a fresh enquiry under Section 5A. The question arises from the following facts:

2. Petitioner No. 1 is the father of petitioners 2 to 6 and is the trustee of a private trust called Bai Parvati Trust. The trust was created by the first petitioner in 1934 in memory of and to fulfill the last wishes of his wife Parvatibai who died some time prior to 1934 for a provision of five bungalows in Ahmedabad for the aforesaid five daughters. Petitioner No. 1 and his brother Ranchhodlal Amratlal Shodhan were the owners of land now comprised in Final Plot No. 460 of the Town Planning Scheme No. 3 known as the Ellisbridge Town Planning Scheme admeasuring about 7 151 square yards. In order to provide a site for the said five bungalows petitioner No. 1 and the said Ranchhodlal conveyed and transferred to the said trust for valuable consideration the aforesaid plot No. 460 sometime in September and October 1939. The plot was transferred and since then has stood in the names of petitioners 5 and 6 but it is not in dispute that the trust is the owner of the aforesaid plot. As separate bungalows were to be constructed for each of the five daughters the plot was thereafter divided into six sub-plots. The bungalows could not be constructed as petitioner No. 1 was living mostly outside Ahmedabad and petitioners 2 to 6 or some of them at least used to be abroad. Ultimately in December 1960 the petitioners submitted a site plan to the Ahmedabad Municipal Corporation and by an order of the Town Development Officer dated December 21 1960 the building plans submitted by the petitioners were approved.

3. In the meanwhile some thirteen Government servants belonging to the Revenue Department of the Government of Gujarat formed a co-operative housing society which was duly registered under the Bombay Cooperative Societies Act 1925 The society which is the third respondent herein applied to the Collector of Ahmedabad for acquiring under the Land Acquisition Act the aforesaid plot submitting along with its application a layout of the tenements which the society proposed to construct for its thirteen members. As required by the relevant rules framed for the purpose by the Government the Additional Special Land Acquisition Officer filled in Forms A and B on July 8 1950 and sent them to the Government requesting the Government to approve the building scheme submitted by the society and to extend the benefit of the Land Acquisition (Bombay Amendment) Act IV of 1948. Section 2 of that Act defined a housing scheme meaning thereby any housing scheme which the Government may from time to time undertake for the purpose of increasing accommodation for housing persons including any scheme undertaken from time to time with the previous sanction of the State Government by a local authority or company. By virtue of Section 3 of the Act and the effect of that Act if land was acquired by the Government the owner or the person interested in such land would be entitled to get compensation at the rate prevailing either on the date of the notification under Section 4 of the Land Acquisition Act or on January 1 1948 whichever was less. Act IV of 1948 is however not of particular significance in this petition as the Supreme Court by its judgment in Civil Appeals No. 775 and 776 of 1962 decided on October 5 1964 has declared the Act to be void and therefore the lands acquired by the Government no longer can be valued at the rates therein provided but have to be valued in accordance with the provisions of the Land Acquisition Act 1894 To resume the narration of facts the additional Special Land Acquisition Officer submitted his report dated July 22 1960 to the State Government through the Collector requesting the Government to issue a notification under Section 4. On August 3 1960 the Government of Gujarat by its memorandum directed a notification to be issued under Section 4 approving thereby the building scheme submitted by the third respondent society and which became thereupon a housing scheme within the meaning of Section 2 of the Bombay Act IV of 1948. On that very day i.e. August 3 1960 the Government issued a notification under Section 4 stating therein that the land specified in the schedule thereto was likely to be needed for a public purpose namely for the construction of houses for the third respondent society That notification also stated that if the Government were to be satisfied that the said land was needed for the aforesaid purpose a final notification to that effect under Section 6 would be published in the gazette. An enquiry under Section 5A of the Act was thereafter held by the authorised officer on the objections raised on behalf of the petitioners and a report according to Sub-section (2) of Section 5A was made to the Government. The Government on coming to a decision as contemplated by Section 5 entered into an agreement with the third respondent society dated January 31 1961 which agreement inter alia provided that the entire cost of acquisition was to be borne by the third respondent society and the Government of Gujarat was not to contribute to the costs of acquisition from public revenues. On July 18 1961 the State Government issued a notification under Section 6 of the Act stating therein that the said land was needed to be acquired at the expense of the third respondent society for the public purpose specified in column 4 of the schedule thereto. That column stated that the public purpose for which the land was needed was for construction of houses for the third respondent society. A declaration to that effect was also set out in the said notification as required by Section 6 Thereupon the present petition was filed on September 22 1961 and on September 25 1961 this Court issued a Rule and granted an interim injunction restraining the Government from proceeding further with the acquisition and taking possession. In the meantime the Supreme Court gave its decision in R.L. Arora v. The State of Uttar Pradesh : AIR1962SC764 and presumably in view of that decision and realising that the notification under Section 6 dated July 18 1961 was untenable the Government by a notification dated April 28 1964 cancelled the aforesaid notification. On August 14 1964 the Government issued a fresh notification under Section 6 which was published in the Gujarat Government Gazette on August 20 1964 without issuing a fresh notification under Section 4 without holding a fresh enquiry under Section 5A without inviting objections thereunder and without having a fresh report on such fresh enquiry. By that notification it was declared that the Government of Gujarat was satisfied after considering the report of the Collector under Section 5A(2) of the Act that the said land was needed to be acquired at the public expense for the public purpose specified in column 4 of the schedule thereto. The public purpose stated in that column was for the housing scheme undertaken by Shri Krishnakunj Government servants Cooperative Housing Society Ltd. Ahmedabad with sanction of the Government. The declaration contained therein and required under Section 6(2) was that the land was required for the public purpose specified in column 4 of the schedule to that notification.

4. Since the new notification dated August 14 1964 was issued pending the final disposal of this petition the petitioners applied for leave to amend the petition to enable them to challenge the validity of the new notification and we allowed the amendment giving liberty to the respondents to file additional returns. This has been done by respondent No. 1. It is not necessary to go into the details of the several contentions raised in the petition as also in the amendment for Mr. Desai for the petitioners raised only the following contentions, namely-

(1) once the notification dated July 18 1961 was issued under Section 6 the notification under Section 4 dated August 3 1960 was worked out and therefore was exhausted and lost its efficacy;

(2) therefore no other notification under Section 6 in relation to the notification dated August 3 1960 could thereafter be issued unless the proceedings were started de novo and a fresh notification was issued under Section 4 and a fresh enquiry and a fresh report were made under Section 5A;

(3) the notification under Section 6 dated August 14 1964 set out and was for a purpose different from the one set out in the notification dated July 18 1961 and therefore it could not be issued without a fresh notification under Section 4 and without a fresh satisfaction therefore of the Government derived from a fresh enquiry and a fresh report under Section 5A of the Act in respect of the new purpose and without giving an opportunity to the petitioners to raise objections afresh in regard to such new purpose.

5. The submission of Mr. Desai was that the notification dated August 3 1960 issued under Section 4 stated that the land in question was likely to be needed for a public purpose namely for the construction of houses for the third respondent society. It also stated that if the Government was satisfied that the said land was needed for the aforesaid purpose i.e. for construction of houses for the third respondent society a final notification under sect on 6 to that effect would be issued. Under Section 5A an enquiry was held whereat the petitioners raised certain objections and the Additional Special Land Acquisition Officer thereon made his report to the Government and the Government took its decision and arrived at its satisfaction and decided to apply Part VII of the Act and accordingly entered into an agreement with the society under which the society undertook to pay the entire compensation. The consent to put the Act in motion and to apply Sections 6 to 36 of the Act was given by the Government on the footing that the final declaration would be one for a company and not for a public purpose simpliciter and a declaration to that effect was finally made by the Government under Section 6(2). That having been done. Mr. Desai argued the notification dated August 3 1960 issued under Section 4 was worked out by issuing the notification of July 18 1961 and therefore upon the cancellation of the notification of July 18 1961 no new notification under Section 6 could be issued without starling the proceedings afresh there being no efficacious notification under Section 4 on which the later notification of August 14 1964 could be founded. According to Mr. Desai the purpose of acquisition set out in the notification of July 18 1961 being one for construction of houses for the society and Section 40(1)(b) having been brought into operation and Part VII of the Act having been applied the Government could not change the purpose and make a declaration for a public purpose simpliciter without holding a fresh enquiry under Section 5A and without giving an opportunity to the petitioners to raise objections if they had any to such new purpose. In support of these two contentions Mr. Desai relied upon R.C. Sen v. The Trustees for the Improvement of Calcutta I.L.R. 48 Cal. 892 Corporation of Calcutta v. Omeda Khatun : AIR1956Cal122 Vishnu Prasad Sharma v. State of Madhya Pradesh : AIR1962MP270 and finally State of Bihar v. Tulsi Ram Tibriwala : AIR1964Pat568 .

6. In Sen v. The Trustees for the Improvement of Calcutta (supra) a Division Bench of the Calcutta High Court held that where there was one holding there could not be piecemeal acquisition as the Land Acquisition Act referred only to one notice one proceeding and one award to be given taken and made regarding one holding and one ownership. But it also held that when the Collectors in obedience to the decision of a Court to which he was subject desisted pending an appeal from that decision from proceeding with the acquisition of the portion of the premises effected by that decision he was not thereby debarred from further proceeding with the acquisition when a Court superior to that which gave the decision declared the latter to be erroneous. This decision recognises the principle that the Land Acquisition Act contemplates one notice one proceeding and one award in respect of land sought to be acquired and therefore save for the exceptions therein set out there can be no piecemeal acquisition. Therefore if a notification is issued acquiring a certain portion of land but a notice for possession is issued for a part of it only and an award is also made in respect of such part only acquisition of the rest of the land is deemed to have been abandoned and the notification is deemed to have been worked out and its efficacy exhausted. Therefore the Government thereafter cannot in pursuance of such a notification issue a further notification for taking possession of the rest of the land mentioned in the notification. That principle was followed by the same High Court in Corporation of Calcutta v. Omeda Khatun : AIR1956Cal122 where it was held that from the very nature of the acquisition proceedings more than one award could be made only in two classes of cases i.e. (a) where the land in respect of which the declaration under Section 6 had been made was under the ownership of different individuals and (b) when the acquisition proceedings in respect of the declared land (whether under the ownership of a single or different individuals) was held up by circumstances over which the acquiring authority had no control e.g. by an injunction or a decision of a superior Court and where such injunction was subsequently dissolved or the decision overruled. It was further held that subject to these two exceptions ordinarily the rule was that there could be no piecemeal acquisition in respect of land for which a declaration had been made under Section 6 of the Land Acquisition Act and the Act lent no countenance to the procedure of a portion of a holding included in a declaration under Section 6 being acquired in the first instance and the remainder or a further portion being acquired at a future date at the option of the requiring or the acquiring authority. The facts of that case were that in 1927 the Calcutta Corporation prepared a scheme for development of a certain area providing therein a childrens playground and widening of a certain road and at their instance the Government of Bengal started acquisition proceedings in respect of an area comprising a little more than fifteen bighas. A declaration under Section 6 of the Act dated July 29 1927 was published. The declared area comprised within itself certain premises admeasuring about eleven Cottas which belonged to one Torab Ali. The scheme not only provided for the acquisition of the land for road alignment but also acquisition of surplus land for the purpose of recoupment. The Government however did not proceed with the acquisition of the entire area belonging to the said Torab Ali but acquired only an area of four Cottas which was covered by road alignment. On March 7 1932 the Land Acquisition Collector made an award in respect of the acquired area of which possession was taken by the Corporation and a street made thereon. Torab Ali thereafter applied to the Corporation to exempt the unacquired portion from acquisition but the Corporation rejected that application in August 1935. The Corporation there after requested the Collector to furnish an estimate of cost for the acquisition of the unacquired portion and according to the estimate of the Collector the Corporation deposited a sum of Rs. 17 0 and odd in the Reserve Bank of India on July 29 1938 Thereafter Torab Ali died and his son Abdul Rehman filed a further application to the Corporation for exemption in September 1940. Nothing however was done by the Corporation in regard to this application. Ultimately on April 18 1949 the Land Acquisition Collector was requested to proceed with the acquisition. Land acquisition proceedings were thereafter revived and a notice under Sections 9 and 10 of the Land Acquisition Act was served upon the heirs of the deceased Torab Ali on the basis of the declaration published in the gazette on August 4 1927 Objections were filed by the heirs of Torab Ali before the Collector claiming that the revival in 1951 of the land acquisition proceedings started in 1927 was illegal and invalid. The Collector accepted the objection and dropped the proceedings by his order dated August 21 1951 but at the instance of the Corporation the Government of West Bengal by its order dated July 1 1952 held that the Collector had no jurisdiction to drop the proceedings because under Section 48 of the Act it was only the Government which was competent to withdraw the proceedings before possession was given. The Government accordingly directed the Collector to proceed with the acquisition of the remaining portion and it was against this order that the heirs of Torab Ali filed a writ petition under Article 226 in the High Court. As aforesaid the High Court following the principle laid down in Sens case (supra) held that there could be no piecemeal acquisition in respect of land for which a declaration had been made under Section 6 and that the Act did not permit procedure of a portion of a holding included in a declaration under Section 6 being acquired in the first instance and the remainder or a further portion being acquired at a future date at the option of the acquiring authority. The High Court also held that once a notification was issued under Section 6 stating therein the land needed for a public purpose if a part of it only was actually taken possession of under a notice issued under Sections 7 and 10 and the remainder was not taken possession of the notification issued under Section 6 must be said to have been exhausted and having lost its efficacy and that it was not permissible under the Act to split up the land and to acquire a part of it and keep the notification for the rest in abeyance. Chakravarti C.J. at page 131 of the report stated:.since piecemeal acquisition is unknown to the Act the acquisition of only a portion in the first instance would itself be invalid unless it was presumed that the acquisition of the remainder was intended to be abandoned and since the portion first acquired would not be given up but would be sought to be retained as validly acquired the acquisition of the remainder must be deemed to have been abandoned.

Similarly, in Vishnu Prasad Sharma v. State of Madhya Pradesh : AIR1962MP270 a Division Bench of the High Court of Madhya Pradesh held that on a reading of Sections 4 and 6 the result was that once an area in a locality was declared to be needed and notified under Section 6 of the Act the efficacy of the notification under Section 4 in pursuance of which the land was so fixed would come to an end and the notification under Section 4 would become a dead letter. Any proposal for further acquisition in the same locality would have to be followed up by a fresh notification under Section 4(1) of the Act and where that was not done the notification under Section 6 would be void and without jurisdiction as not being proceeded by a fresh notification under Section 4 of the Act. In that case by a notification dated May 16 1949 issued under Section 4 of the Act the State Government declared that lands in certain villages including the village Chawani were likely to be needed for a public purpose namely the erection of an iron and steel plant. After the necessary enquiry some land in the village Chawani was acquired in 1956. Thereafter no further land in particular was proposed to be acquired in that village although lands in other villages for the same purpose were declared needed in the year 1955. The learned Judges in that case however were not concerned with these lands situate in the other villages declared to be needed in the year 1955. Thereafter a notification dated August 2 1960 was issued under Section 6 of the Act proposing to acquire further 486 acres of land in Chawani village as also in two other villages and the area proposed was demarcated and shown in the map kept at the office of the Collector for inspection. That notification further announced under Section 17 the Governments decision that the provisions of Section 5A of the Act would not apply to the proceedings. It was this notification dated August 2 1960 which was challenged as being void on the ground that it was not preceeded by a fresh notification under Section 4(1) of the Act with respect to further acquisition thereunder the prior notification issued in 1949 under Section 4 not being subsisting and available. The contention was that the notification under Section 4 was exhausted by the issuance of the notification under Section 6 and the acquisition of land in pursuance thereof. After analysing the provisions of Sections 4 5 and 6 the High Court came to the conclusion that on a fair reading of the provisions of these sections the result was inevitable that once an area in a locality was fixed to be acquired and notified under Section 6 of the Act all efficacy of the notification under Section 4 in pursuance of which the area was so fixed came to an end and became a dead letter and any proposal for further acquisition in the same locality would have therefore to be followed up by a fresh notification under Section 4(1) of the Act. On that reasoning the High Court quashed the notifications issued under Section 6 dated August 2 1960 It will be borne in mind that after the necessary notifications under Sections 4(1) and 6 were issued by the State Government in 1949 and 1956 respectively and the necessary enquiry under Section 5A had been held the Government had actually acquired and taken possession of certain lands situate in Chawani village in pursuance of the notification under Section 6 issued in the year 1956. It was in reference to this fact and following the Calcutta decision in the Corporation of Calcutta v. Omeda Khatun (supra) that the High Court held that so soon as the acquiring authority had issued the notification issued in 1956 under Section 6 and had thereunder actually acquired certain lands in the village Chawani the notification issued in 1949 under Section 4 had been worked out and had therefore lost its efficacy. Therefore if the acquiring authority desired to acquire further lands it would be necessary to start acquisition proceeding de novo by issuing a fresh notification under Section 4(1) and it would be only after issuing such notification that a further declaration under Section 6 could be made. It was on that ground that the learned Judges held that on a reading of the two sections the result was that once an area in a locality was fixed to be acquired and notified under Section 6 the efficacy of the notification under Section 4 in pursuance of which such area would be fixed came to an end and the notification issued under Section 4 dated May 16 1949 thereafter became a dead letter. The notification in the words of the learned Judges would become a dead letter because not only a notification under Section 6 fixing the land as needed for a public purpose was issued but actual acquisition in respect of that land was made in pursuance thereof. The last decision which Mr. Desai relied upon was State of Bihar v. Tulsi Ram Tibriwala : AIR1964Pat568 . In that case the notification under Section 4 of the Act dated January 5 1945 provided that the land in a specified village was likely to be needed for the public purpose namely for location of a factory for the manufacture of amonium sulphate and allied industries. Subsequently the Government issued a declaration under Section 6 on May 16 1946 to the effect that a particular area in village R was needed for the aforesaid purpose. The suit lands in village R which were left out from the notification under Section 6 continued to be in possession of the owners and costly buildings came to be erected thereupon. The lands were acquired and in due course the factories were constructed thereon. The State of Bihar however without issuing a fresh notification under Section 4(1) and without holding an enquiry under Section 5 came out with another declaration dated January 5 1951 under Section 6 of the Act. This declaration stated that the suit lands in village R were needed for the construction of Mechanical and Electrical College. The suit lands were thereafter acquired and compensation awards were made. The owner of the lands objecting to the notification dated January 5 1951 filed suits for having the said notification as also the compensation award quashed. The High Court held that upon the making of the first declaration under Section 6 in 1946 fixing the definite area in village R as needed for acquisition the notification under Section 4 issued in 1945 was fully exhausted and having lost all its force and efficacy came to an end and accordingly the impugned second declaration in the year 1951 without being proceeded by a fresh notification under Section 4(1) and by a fresh enquiry under Section 5A was void and without jurisdiction and had to be quashed. The High Court observed that the purpose for which the proposal for acquisition was made having stood exhausted and fulfilled to the satisfaction of the Government as expressed in their first declaration in 1946 all justification and meaning behind the issuing of the notice under Section 4 disappeared and thus the notice itself got fully exhausted and in so far as the purpose mentioned in the declaration of 1951 was distinct and different from the one mentioned in the notification under Section 4 it had to be held that as the alleged satisfaction of the Government mentioned in the impugned declaration was not referable to any notified public purpose it could not be said that in making the same there was proper compliance with the provisions of Section 6 and as such the impugned notification was liable to be struck down.

7. It will be noticed that in all these decisions not only the notifications under Section 6 were issued by the relevant Governments but actual acquisitions that is taking of possession under Section 7 and onwards were taken and awards made. On those facts it was possible to say that there was an implied abandonment of the remainder of the lands notified under Section 4 and the notifications under Section 4 were therefore fully worked out and their efficacy was exhausted. The Patna decision in State of Bihar v. Tulsi Ram Tibriwala has clearly no application to the facts of the present case because not only the notification under Section 4(1) therein was worked out by the lands having been fixed upon by the notification under Section 6 and such lands having been taken possession of and awards therefor having been made but the purpose set out in the notification under Section 4 was totally different from the purpose set out in the impugned notification of 1951 namely a Mechanical and Electrical College. Secondly the lands stated in the notification under Section 4 were more in quantity than the lands specifically fixed in the notification issued under Section 6 dated May 16 1946 Therefore the satisfaction of the State Government was only in respect of the lands fixed under that notification and consequently if the acquiring authority desired to acquire more lands than those fixed upon in the said notification dated May 16 1946 it had to come to a further satisfaction with regard to the new lands and therefore a fresh enquiry and a fresh decision became necessary under Section 5A. It is clear therefore that on the facts and circumstances of that case the impugned notification issued under Section 6 in 1951 was without jurisdiction and had to be quashed. On the facts of this decision if the relevant Government wanted to acquire the remainder of the lands which were either not fixed upon under the notification under Section 6 or which though declared under Section 6 had not been actually acquired and were not the subject matter of the awards made therein the relevant Government could not rely upon the notification issued under Section 4 on the footing that once such notification was issued the Government could go on acquiring lands at such time as it pleased on the footing that after a part of such lands was actually acquired the notification under Section 4 or 6 would remain in abeyance and could be used for taking possession under Sections 7 and 10 of further land from the remaining land.

8. The question then is can the principle of loss of efficacy and implied abandonment be brought in aid to a case where no actual acquisition has taken place but where there is cancellation of the notification issued under Section 6 and a new notification under that section is issued? The answer in our view must be in the negative and for obvious reasons. In the case of piecemeal acquisition as in evident from the decision relied upon by Mr. Desai the authority not only issued a notification under Section 6 making a firm declaration as to the land needed but went further and actually acquired such land that is to say issued notices for possession made the requisite awards and took possession. From these facts it will be clear that the land actually taken possession of was the only land that the Government acquired though the notification issued under Section 6 made reference to other lands also. But since only a part of the land was actually acquired and an award was made therefor only the intention of the Government was clear that the remainder was not sought to be acquired and therefore such a case would be a case of implied abandonment of the rest of the land and the notification could be held to have been worked out and having lost its efficacy. The case of such piecemeal acquisition can however bear no analogy to a case where the notification under Section 6 is cancelled before it is worked out in the sense of there being no taking of possession and no award having been made. What happens in reality in such a case is that the Government makes first a tentative notification under Section 4 and thereon an enquiry is held under Section 5A and on a report made thereafter the Government makes a firm declaration under Section 6 that certain land is needed for a certain public purpose. Before doing so but on being satisfied that the purpose for acquisition is a public purpose it decides whether it will acquire for a public purpose company where the company bears the entire cost of acquisition. If after issuing such a notification the Government finds on a declaration of law made by a superior Court that the notification is invalid or does not fall under a provision of the Act which the Government at one time thought it did the Government cancels that notification without waiting for a superior Court to declare it invalid. I these circumstances, it cannot surely be said that the notification issued under Section 4 is worked out and is exhausted. If such a notification does not fall within a particular provision on the basis of which it is issued such a notification is non-est and it is void from its very inception. If such a notification is void from its very inception it cannot be said to have come in existence at all and therefore it would not be possible to say that it was issued in the course of the working out of the notification issued under Section 4. Whether such a notification is cancelled or rescinded by the Government on its own on realising that it is untenable and bad for want of jurisdiction or it is set aside by a Court of law it would not in our opinion make any difference in principle. The cancellation either by the Government on its own or by a Court of law would mean that it was never in existence and therefore not being in existence at any time it cannot be said that it came into existence as a result of the working out of the notification under Section 4. Such a case is actually to be found in Anand Kumar v. State of M.P. : AIR1963MP256 where a Division Bench of that High Court consisting of the learned Chief Justice and Pandey J. distinguishing its earlier decision in : AIR1962MP270 held that when a notification issued under Section 6 following a notification under Section 4 in respect of the same land was quashed by the High Court before the acquisition was completed while upholding the notification under Section 4 a fresh notification under Section 6 without a fresh notification under Section 4 was not invalid and the notification under Section 4 was not exhausted after the issue of a notification under Section 6 the notification under Section 4 being only of an exploratory nature. Distinguishing its earlier decision in A.I.R. 1952 M.P. 270 the learned Judges observed that there was material difference between the two cases in that the case before them was not one of piecemeal acquisition and therefore after the issue of a notification under Section 4 there was no completed acquisition at all and that what had happened was that the notification issued under Section 6 was quashed by them and thereupon a fresh notification under Section 6 had been issued. The learned Judges emphasized that--

If we had taken the view that on the issue of a notification under Section 6 on 22nd March 1961 the notification under Section 4 exhausted itself then we would have quashed that notification also while quashing the notification dated 22nd March 1961 issued under Section 6 of the Act. But we did not do so.

In our view the issuance of the notification dated July 18 1961 and its cancellation thereafter did not mean that the earlier notification of August 3 1960 was worked out or that it had lost its efficacy and was a dead letter and that consequently a fresh notification in relation to that earlier notification could not be issued. The principle of loss of efficacy and implied abandonment deducible from the decisions relied upon by Mr. Desai in our view does not apply to the present case where clearly there was no actual working out of the earlier notification under Section 4 or under Section 6 and what happened was that only an invalid notification issued by the Government was rescinded the effect of such recission being that the position was restored in the sense as if the notification under Section 6 dated July 18 1961 was never issued. It was therefore possible for the Government to resort to the notification of August 3 1960 and issue another and fresh notification under Section 6 on the basis of the former notification under Section 4.

9. As regards the second contention of Mr. Desai it is not possible to say that there was any difference in the purpose set out in the notification of July 18 1961 and the impugned notification of August 14 1964 The purpose as recited in the notification under Section 4 was a public purpose namely construction of houses for the society. The notification of July 18 1961 also stated that the land was needed for the public purpose namely construction of houses for the society. The notification of August 1964 no doubt uses a different phraseology namely for the housing scheme undertaken by the society with the sanction of the Government and unlike the earlier notification of July 18 1961 the Government no doubt this time proposed to contribute Rs. 500/from public revenues thereby making the declaration for a public purpose simpliciter. But these changes are only verbal variations and do not mean a change in the purpose or introducing a new purpose necessitating a fresh enquiry and a fresh satisfaction. The purpose remains the same namely the construction of houses for the society and barring the fact that in the earlier notification it was not stated that there was a scheme approved by the Government according to which the tenements were to be constructed the purpose remains in essence the same. As already stated the scheme was submitted long before the notification of August 3 1960 was issued and after the Government had accorded its approval and was therefore a housing scheme as defined by Act IV of 1948. Probably when the new notification dated August 14 1964 was issued the new phraseology was used in order to emphasize or clarify that that Act would be applicable and the rates therein set out would apply. Barring that the purpose was essentially the same namely the construction of houses for the society under a scheme which in fact was submitted and approved by the Government. There was therefore no need for a fresh enquiry or a fresh report or a fresh satisfaction under Section 5A for all that was already done before the cancelled notification was published in respect of the construction of houses for which there was a scheme submitted to and approved by the Government. That fact must be presumed to be before the mind of the Government when it published the notification dated July 18 1961 Therefore there would be no question of a fresh enquiry or a fresh opportunity to be given to the petitioners to raise new contentions as the purpose for which the acquisition was sought for had remained the same all throughout namely the construction of houses for the society. Assuming that the petitioners did not know prior to August 20 1964 that there was such a scheme it would not make any substantial difference because no objection could be raised by the petitioners under Section 5A to an approval or sanction being accorded to such a scheme. The scheme being for the construction of houses for the society the fact that it was submitted to and approved by the Government would not constitute a change in the purpose or such a change that it would necessitate a fresh satisfaction on the part of the Government and therefore a fresh enquiry.

10. Lastly Mr. Desai contended that the cancellation by the Government of the notification dated July 18 1961 amounted to withdrawal or abandonment within the meaning of Section 48 and that therefore the impugned notification under Section 4 would be without jurisdiction. In our view there is no substance in this contention also for Section 48 of the Act is merely an enabling section which gives liberty to the relevant Government to withdraw an acquisition. Besides there is no averment in the petition that when the notification dated July 18 1961 was cancelled there was withdrawal of the acquisition. In fact the petitioners did not put forward any case of withdrawal or abandonment at any stage of the acquisition proceedings or even in the petition though as aforesaid the petitioners were given an opportunity to amend the petition more than once and they did in fact amend the petition even at the beginning of the hearing of this petition. Mr. Desai however contended that the cancellation of notification dated July 18 1961 would amount to withdrawal within the meaning of Section 48 and in support of that proposition sought to rely upon the case of Mowasi v. State of Uttar Pradesh : AIR1953All595 where that High Court held that where an objection under Section 5A had been allowed and the Government decided not to proceed with the acquisition proceedings and in fact such proceedings were duly cancelled and fresh proceedings in respect of another land ordered there was in effect withdrawal in terms of Section 48 in respect of the former proceedings. The High Court also held that the decision once taken under Section 5A i.e. to allow the objections of the applicant could not be cancelled or altered and after a decision had been taken by the State Government on the objections in favour of the objector it would no longer be possible to make a declaration under Section 6 because that would amount to setting aside the decision taken under Section 5A which the Act made final. It was observed that this was particularly so where the decision in substance amounted to withdrawal under Section 48. It is difficult to see how this decision can be summoned in aid by Mr. Desai for his contention as to the withdrawal or abandonment of the acquisition under Section 48. Unlike the Allahabad case there was no question in the present case of the State Government having approved of the objections raised by the petitioners or of the State Government having come to the conclusion to drop the acquisition proceedings and ordering fresh proceedings in respect of lands different from those under the acquisition proceedings. The Government order dated May 3 1952 in that case clearly and in express terms stated that the Government had decided to drop the acquisition proceedings and directed to take necessary steps for the acquisition of some alternative lands and further stated that a cancellation notification in respect of the lands under acquisition was under issue. It is obvious that the case before the High Court of Allahabad was clearly a case of an express abandonment falling clearly under the provisions of Section 48 and therefore has no parallel or analogy to the facts and circumstances before us.

These were all the contentions raised before us and we are of the view that none of them has any validity. In the result the petition fails and has to be dismissed. Rule discharged. Both the learned Assistant Government Pleader and Mr. Mehta who appears for the third respondent socjety do not press for costs and therefore there will not be any order as to costs.


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