Supreme Court Dismisses Appeal Against Gujarat High Court Judgment Upholding Fresh Section 6 Notification Under Land Acquisition Act. Invalid Declaration Treated as Ineffective; Government Not Precluded by Section 48 from Issuing Fresh Notification Without Fresh Section 4 Notification or Section 5A Enquiry.

Case Note & Summary

The Supreme Court of India heard a civil appeal arising from a writ petition challenging land acquisition notifications under the Land Acquisition Act, 1894. The dispute involved a land measuring about 7151 sq. yards in Final Plot No. 460 of Town Planning Scheme No. III, Elisbridge, Ahmedabad, which was subject to a trust where the first appellant was trustee and other appellants were beneficiaries. The State of Gujarat had initiated acquisition for a public purpose, namely construction of houses for Shri Krishnakunj Government Servants Co-operative Housing Society Ltd. On August 3, 1960, the State Government issued a notification under Section 4 of the Land Acquisition Act stating that the land was likely needed for that public purpose. An enquiry under Section 5A was held and a report submitted. On July 18, 1961, the Government issued a notification under Section 6 declaring that the land was needed for the public purpose at the expense of the society. The appellants filed a writ petition in the Gujarat High Court on September 22, 1961, seeking to quash this notification, arguing that it was invalid because the compensation was to be paid entirely by a company, contrary to the proviso to Section 6, which required compensation to be paid wholly or partly out of public revenues or a local authority fund. During the pendency of the writ petition, the Government cancelled the earlier Section 6 notification on April 28, 1964, and on August 14, 1964 issued a fresh Section 6 notification stating that the land was needed at public expense for the housing scheme. The appellants amended the writ petition to challenge the fresh notification and the original Section 4 notification. The High Court dismissed the petition on April 2, 1965, holding that the cancellation was only a recognition of invalidity and the fresh notification was valid. The appellants appealed to the Supreme Court on a certificate granted by the High Court. The legal issues before the Supreme Court were whether an invalid Section 6 notification could be treated as ineffective and a fresh Section 6 notification issued without a fresh Section 4 notification and Section 5A enquiry; whether the power under Section 6 was exhausted after the first invalid notification; whether the fresh notification was invalid due to unreasonable delay after the Section 4 notification; and whether the public purpose in the fresh notification differed from the earlier one. The appellants contended that the Government's power to cancel a notification under Section 6, implied by Section 21 of the General Clauses Act, 1897, was subject to Section 48 of the Land Acquisition Act, meaning that cancellation of the Section 6 notification amounted to withdrawal from acquisition and required withdrawal of the Section 4 notification as well, thereby necessitating fresh proceedings. They also argued that the power under Section 6 was exhausted and that the fresh notification was issued after unreasonable delay. The respondents disputed these contentions. The Supreme Court examined the validity of the first Section 6 notification. It noted that the notification stated the land was required at the expense of the society alone, which was impermissible under the proviso to Section 6. The notification was therefore invalid and of no effect, as held in Shyam Behari v. State of Madhya Pradesh. The Court found that the Government, upon realising the invalidity, cancelled the notification without waiting for a court order; this cancellation was only a recognition of the invalidity, not an intention to withdraw from the acquisition. The Court held that nothing in Section 48 precluded the Government from treating the earlier invalid notification as ineffective and issuing a fresh one. The power under Section 6 had not been effectively exercised by the invalid notification, so it was not exhausted. The Court declined to consider the argument of unreasonable delay because it was not raised in the High Court and the factual question was not investigated; it expressed no opinion on whether Section 6 must be issued without reasonable delay. The Court also accepted the High Court's finding that the public purpose was identical, as that finding was not challenged. The Supreme Court dismissed the appeal with costs, affirming the High Court's decision and upholding the validity of the fresh Section 6 notification dated August 14, 1964.

Headnote

Issue of Consideration

Final Decision

The Supreme Court dismissed the appeal with costs, holding that the invalid notification under Section 6 could be treated as ineffective and a fresh notification could be issued without a fresh Section 4 notification or Section 5A enquiry; the cancellation was only a recognition of invalidity and did not amount to withdrawal from acquisition under Section 48; the power under Section 6 was not exhausted; the delay argument was not allowed as it was not raised in the High Court; and the public purpose in the fresh notification was identical to the earlier one.

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