Patel Shankerbhai Mahijibhai Vs. State of Gujarat - Court Judgment

S.H. Sheth, J.

1. All these Petitions are directed against the land acquisition proceedings, Notification undersection 4 of the Land Acquisition Act was issue - d., on 16th June 1972 and was published in Gujarat Government Gazette-om-13tir July, 1972. It was in respect of four survey numbers with their sub-divisions.

Therefore, as many as five petitions have been filed challenging that notification. Thereafter on 11th of April, 1974 Town Planning Scheme in respect of the area in question was finalized and notices to the parties were issued under the Bom bay Town Planning Act. On 11th. July, 1975 declaration undersection 6 of the Land Acquisition Act was issued and it was published in Gujarat Government Gazette, Extraordinary. on the same an On 15th October, 1979. an addendum to the declaration under S. 6 was issued Prid it was oublished on 27th December. 1979. The addendum was issued because the survey numbers in respect of which the impugned acquisition proceedings were instituted had become a part of the Town Planning Scheme and had come to bear final plots numbers. By the addendum, therefore, in addition to the description of the land in terms of their survey numbe7-s, description of the land, in terms .of final 'Plots and the extent of the areas in terryis of reuaremetres was Published. The extent of the area of the land under the impugned acquisition was in the first instance published in terms of the hectares.

2. Before we deal with the contentions which Mr. Patel has raised bef 2 us on behalf of the petitioner,-., it is necesary to state that the first four petitions were Posted for hearing today and that the fifth petition was not posted for hearmg. However, we are deciding the fifth petition with the consent o'c' Parties because the subject water of challenge in that petition is the same as in the other four petitions.

3. The first contention which Mr. Patel has raised is that the notification Issued undersection 4 of the Land Acquisition Act was void ab initio and non est because it did not specify public Purme in respect of which the impugned land acquisition Proceedings were instituted. In order to examine the contention which Mr. Patel has raised, it is necessary to reproduce the opening part of the first paragraph of that notification. It reads as under:

'Whereas it appears to the Government of Gujarat that the lands specified in the schedule hereto are likely to be needed for a public purpose, viz. for Gujarat Housing Board, it is hereby notified under the provisions of See. 4 of the Land Acquisition Act, 1894 (1 of 1894) that the said lands are likely to be needed for the purpose specified about

According to Mr. Patel, a mere statement that it was required for a public purpose did not indicate any public purpose. The argument raised by Mr. Patel is eminently correct.

4. The second argument which he has raised is that reference to the Gujarat Housing Board is a reference to the instrumentality and not reference to the public purpose.

5. Mr. Takwani who appears on behalf of the respondents has argued that reference to 'the Gujarat Housing Board is a refe I rence to the Public Purpose. It is difficult for us to uphold this -argument because the Public purpose and the instrumentality are two different things. An instrumentality cannot be substituted for a public purpose. That 'instrumentality' and 'public purpose' are different is made clear in the instant case by the declaration made undersection 6 of the Land Acquisition Act. It in, terms stated that 'the lands under acquisit , ; -on were required for construction of houses by the Gujarat Housing Board.' This specification in Col. 4 of the declaration jade undersection 6 clearly distin-1 guishes, between 'the Purpose' and 'the instrumentality'. It is clear, there re that the notification issued under Seo, 41 did not specify any purpose whatsoever but specified only the instrumentality.

6. The next question which has arisen for our consideration in this context is whether omission to specify the -public purpose renders notification undersection 4 void ab initio and non est or erely invalid. It is necessary to decide this -point because finding on this point will have a material bearing on the question of delay which Mr. Takwani on behalf of the respondents has very strenuously araued. Our attention has been invited by both the learned Advocates to a few decisions.

7. The first decision is in Munshi Singh v. Union of India, AIR 1.973 SC 1150. It has been observed in that deci-sion that when the notification merely mentions that the land is needed for 'Planned development of the area' and when there is no proof that the inlerested persons are either aware of or shown the scheme or the master plan in respect of the planned development, it must be held that thc,v are unable to object effectively and therefore the acquisition proceedinas must render themselves liable to be quashed. In that case, it was not, a cornr)lete omission on the part of the Land Acquisition Officer to specify the pumose. Ile had specified the purpose which read as follows: 'Planned development of the area'. Such a purpose. in the facts and circumsiances of the case, was rcvarded as no Purpose at all because, accordin2 to the Supreme Court, unless the persons interested were aware of any such, plan, they v,-ould not be able to effectively exercise their ri~jht of lodging objec tions against the proposed acquisition. -If such a vajaue description of a purpose renders a notification issuedi undersection 4 invalid because it does not give an effective opportunit,- to the perse . ns interested to lodge objections under Section 5-A, it must be more so when notification issued undersection 4 does not specify the purpose at all. A declaration undersection 6 is not a cure bLcause it follows the enquiry under Section 5-A of the Land Acquisition Act.

8. In order to convince us that a notification which does not specifv the public purpose is void or non est and is not so much required to be set aside. Mr. Patel has invited our attention to the decision of the Supreme Court in Union of India v. Tarachand Gupta & Bros., AIR 1971 SC 1558. It was a case under the Imports and Exports (Control) Act 1947. The principle which has been laid down in that case is that an order which iF, passed in excess of jurisdiction is a nullitv. Therefore. the question of having such an order set aside does not arise.

9. The third decision to which our attention has been invited is in Collector of Monahvr v. Keshav Prasad Goenka, AIR 1962 SC 1694. It was a case under Bihar Private Irrigation Works Act, 192-2. The nrinciple which has been laid down in that decision is that what Section 5-A requires is the conclusion that irrigation works for the purposes set out in Section 5-A should be immediateiv taken on hand and completed and that there is such an emergency in having the work completed that it cannot brook anv delav. This decision does not have much relevance to the contention which Mr. Patel has advanced before us.

10. There is no doubt in 'our minds that specification of a public Purpose which would enable the interested iDersons to lodge the obiections effectively under Section 5-A is the core of Section 4. If that requirement ofsection 4 is not satisfied, notification issued under Section 4- must be held to be void.

11. On behalf of the respondents, It has been argued bv Mr- Takwani that these petitions are barred bv delav and laches and that, therefore, we should not entertain them. The facts which he has placed before us in that behalf are as follows. Notification undersection 4 was published on 13th July, 1972. Declaration undcr See. 6 was published on 11th Julv, 1975. The present petitions were filed in 1980, In other' words, according to Mtn, these petitions were filed a little less than eight years after the impugned notification undersection 4 was issuedSo far as these facts are concerned. there is no controversy. It may, however. be stated in order to complete the narrative in this context that the addendtm to the declaration undersection 6 was published on 27th December, 1979. Accordine to Mr. Takwani, such stale petitions should not therefore be entertained. He has invited in that behalf our attention to three decisions of the Supreme Court,'

12. The first decision is in Aflat6on v. Lt. Governor of Delhi, AIR 1974 SC 2077. In that decision, the Supreme Court has observed as follow :

'A valid notification undersection 4 i , s a sine qua non for initiation of proceed ings for acquisition of property. To have sat on the fence and allowed the Government to, complete the acquisition proceedings, an the basis that the 'notification undersection 4 and the declaration undersection 6 were valid and then to attack the notification on grounds which were available to them at the time when the notification was published would be putting a premium on dilatory tactics.' The Supreme Court, therefore, dismissed the writ petitions. The principle which Mr. Takwani has asked us to apply to the facts of this case is that the petitioners had sat on the fence for such a long period as eight years and allowed the Land Acquisition Officer to complete the. acquisition Proceedi=& Therefore, they cannot be allowed to turn round and challenge the validity of the notification issued under Section 4. In Aflatoon's case (supra), the land acquisition proceedings were completed. In the instant cases, thev have not been completed. Award of compensation has not yet been made. The Government itself took nearlv three years undersection 6 of the Land Acquisition Act, again took three Vears to publish an addendum to it and then issued notices to the interested persons undersection 9 of the Land Acquisition Act, 1894. So far as Aflatoon's case (supra) is concerned, it aPpears to us that the Supreme Court refused to entertain stale petitions nolt merelv on the ground of delay and laches but because the passage of time had priven rise to the rights of third parties. Para 12 of the report makes it clear that after the acquisition Proceedings were finalized, the Government had allotted a large Portion of land to co-overative housing soeiet*s. The Supreme Court therefore. exrwessed the view that to -viash the ti(Wrficaticn at that stame would drpvve db-- pardes wiW3 vpPre not before the Court of ttietr right to represent. The vule of ixuden^* whIch the concept of ;Way and Inches enuncLqtes, therefore, ea~snot be applied to the facts of the 't,wtvat esises famtiv because the land acA**Nian proceedings have not been camOWM and secondtv because- the rivhts of the third parties have not y4et come in oxirtenM

13. The next decision to which our attenUun has been invited is in Sint. Ratni Devi %% Chief Commr- Dellii. AIR 1975 SC 1699. It was a case under Land Aaivisition ARt. 1891 It has been laid &,,wn in that decision that a valid notification'undersection 4 is a sine qua non farfhe initiation of proceedinas for acciuisition of a property. It also appears to i4s from tbe report that the acquisition proceedims in that case had been allowed to be completed on the basis that the notifiPation. issued undersection 4 and declaiation niade under f3ection 6 were 'val;id. In that case, noti&-ation under tection 4 was issued in 1959. It was followed by a declaration undersection 6 r4ade in July 1961) and again in October, 1961. The writ petitions were filed in 2971, that is to say after a lapse of nearly a decade. Therefore. since the land am.uisition Proceedings had been allowed to be completed by the petitioners in that case without challenging the validity of. the notification undersection 4 and declaration under Section 6, the Sunreme Court pressed into service the doctrine of delay and laches and refused to give to the petitioners therein any relief.

14. The next decision to whAch our attention has been invited is in Babu Singh v. Union of India, AIR 1979 SC 1713. It was a case under Land Acauisition Act. In that case, a writ petition Challenging the declaration made undersection 6 was filed nearly six years and am nwnth after the publication thereof -and about five vears after the award was made~ No explanation was tendered by the petitioner showing why the netition was filed after such an inordinate delay. The entire process of aoquisitioij was ower. The Supreme Court. tyrefore, took the view that the writ Petition was liable to be dismissed in limine on account of delay. While doing so. the SurrPme Court has observed that if a vers6n allows the Government to comskleete the acquisitiory broceedines on the basis that the notification umiersection 4 and the declaration undersection 6 am valid and then attacks the notification on the orotmds which were available to him at the time when it was published, it would be putting a Dremium on dilatory tactics. It has been further observed in that decision that the length of delav is an important circumstance because of the nature of the acts done 'within the interval on the basis of the notification and the declaration. iTherefore, the challenge to a notification undersection 4 and a declaration undersection 6 of the Act should be made within a reasonable time thereafter. If it is not so done, the petition is liable to be dismissed. In Babu Sinvh's case (supra), the Supreme Court refused to interfere with the acquisition in auestion because the entire acquisition proceedinas had been completed.

15. The decisions to which we have made reference firstly lay down the winciple which supDorts our finding on the first contention raised by Mr. Patel. The validity of notification under See. 4 is a sine qua non of all valid land acquisition proceedings. So far as delay is concerned. what we find in the decisions referred to above is as follows. If the land acquisition proceedinas have been completed or if the rights of third varties have come into existence during the period intervening between the issuance of notification undersection 4 or the' declaration undersection 6 and the, institution of the writ petition, delay as-~ sumes a very great importance and should be pressed into service in order not to disturb the settled rights or pro-' ceedings which have been finalized.

16. In the instant case, it is true that the petitioners have not explained in the Petitions why they filed these Detitions nearly eight years after the impugned notification undersection 4 was published. However, there are certain facts which speak for themselves. Before we summarize them in this iudgment, it isl necessary to note that on behalf of the respondents, a cursory affidavit has been! filed. Such an affidavit has left many a~ statement made bv the petitioners uncontroverted. We do not propose to dismiss these vetitions in limine on the~ ground of delay on account of the fol-I lowing reasons. Firstly, the ininuaned notifica'ion issued undersection 4 of the Land AcouiFition Act was void and non est because it specified no public purpose at all and was not merely invalid as would be the case if some public purpose was specified but was found to be vague or inadequate. In case of an invalid notification, fence-sitters cannot be allowed to challenge it after undue delay. In case of a notification which is void -ab initio and non est, bar of delay cannot be invoked because since it is non existent in the eye of law, it can be called in auesion in any Proceedings. Secondly, acquisition proceedings which started with the publication of the notification undersection 4 have not yet been over. Thirdly, no rights of third parties have come into existence during the intervening period. In a given case. they will have to be taken into account even where the notification is void and non est and not merely invalid. Fourthly, the Land Accuisition Officer or the Government, as the case may be, has itself acted in a leisurelv and tardy manner. The last conclusion is evidenced by the following facts which we recapitulate for the purDose of ready reference, Notification undersection 4 was Published on 13th July, 1.972. Declaration undersection 6 was made.nearlv three years thereafter, that is to say on 11th July, 1975.~ Addendum to the declaration undersection 6 was published more than four years after the publication of the declaration 'under Section 6. that is to ~say, 27th December. 1979. Notice undersection 9 was issued on 26th February, 1980. Indeed. it was issued very quickly after the addendum was published. The Land Acquisition Officer has not yet made his award for compensation even thouqh eight vears have passed since the publication of the notification under Section 4. Thouah we do not propose to observe as a matter of rule. we are constrained to sav- that if the Land Acquisition Officer or the GovOnment. as the case mav be, acts in such a leisurely and tardv manner, a person who is agerieved by such an acquisition cannot be called upon to act auicklv and post-haste. The objection raised bv Mr. Takwani to the maintainability of the present petitions is, therefore, rejected.

17. and 18. xx xx xx xx

19. The next contention which Mr. Patel has raised and we can appropriateIv deal with at this stage is that the' notice undersection 9 was issued as late as bn 28th February, 1980, that is to say, 416% years after the public'ation of/ the de66ration under Section 6 Ace'ordina to Mr: PatOL.: unl6as:there- are 6ircumstances to explain the reasons whV such an, in ordinately long timewas taken to issue notice undersection 9 it, must -be struck down. Before we exarm*ne.--the proposi tiori which Mr. Patel has advanced- before us, it is necessary fdius. to , note that on behalf of the respofidents_.no~gx planation has been placed on record to show why'notice under 9 wag, issued about 41/2 years after the publica tion of the eclaration undersection 6 of he Land Acquisition Act-

20. Turning now to thqc contention which Mr. Patel has raiso~'R I we *Ust note that, according to Mr. Pat ef,' 'exercise of power by Government or by anv.pubUc authority must be ,within a reason-able period of time. He has in that-behalf in vited our attention to the decision Supreme Court inGuiarat State TV~Ai~, , port Corporation v. Valii Mulii 9bneii,'_ (1979) 20 Gui LR 810 : (AIR 1980 SC 64). It was a case under the Land Acquisitiop Act. Therein the decision of this Court reported in Valii Mulii Soneii V. State of Gujarat, (i970) 11 Gui LR 95. 'was challenged. This Court had taken the view that power to make a declaration undersection 6 must be exercised with.in a reasonable period of time afte~ the publication of notification under SEIF.4 because, if undue delarv is caused in1he exercise thereof. the rights of interested Parties are likely to be verselv affected. On a close reading, of the decision of the Supreme Court. we find that the Supreme Court has approved the principle that the statutorV Dower must be exercised reasonablv which, implies that it must be exercised within a reasonable. period of time though it has not said so expressIv. When the Sunrerne Court said that the High Court primarily relied upon the postulate that every statutory Dower must be exercised re I asonably, a doctrine ' too firml)'rentrench ed in our Jurisprudefiee to brook any refutation 9$. it appears to haive re- ferred only to what was argued before the High Court and what was decided bV it. It does not appear to have exvresslY approved that principle. However. The Supreme Court has also not refuted it. 'If this Principle was refuted by it.' The Supreme Court would have alloweA the appeal by Writinv a. verv short iudr.1ment' and, with out examining on facts whether delav, of' fifteen vears was satisfaOInrilv exolaine& and withbut brinErinsi into'nlav the amendment tosection 6 made bv the Land Acquisition'(Amendment and Vali-dation) Ordinance, 1967. That is why we say that the Supreme Court has by necessary implication approved the principle that the statutory power must be exercised within a reasonable Period of time. In this behalf. we may state that the Supreme Court in the context of the provisions of Bombay Land Revenue Code has expressly laid down this principle in State of Gujarat v. Raghav Natha, (1969) 10 Gui LR 992 : (AIR 1969 SC 1297) and a Division Bench of this Court has, in a different context in a case under the same Code, has applied it in Habib Nasir Khanji v. State of GuJarat, (1970) 11 Gui LR 307.

21. It has been argued by Mr. Takwani that the principle laid down by this Court in a decision which has been reversed by-the Supreme Court cannot be relied upon. The argument raised by Mr.'.Takwani is in principle sound. 'However, -it does not Prevent us from discovering what Supreme Court has expressly laid down and what it has approved -by necessary ininlication. The reversal, of the decision of this Court is based upon the following grounds: (1) on facts', the Supreme Court appreciated evidence and recorded the conclusion that delay, of 15 years between the publication of notification undersection 4 and making of the declaration under Section P was caused by the litigation which the land owner in that case instituted and which -consumed such a long period of time. In that litigation, the State of GLijarat succeeded in all Courts except the Supreme Court and the State could have done nothing during the pendency of litigation in anticipation of its probabIV lo'sina in the - litigation in Supreme Court when -it had succeeded in all Courts below: (2) there was no unreasonable delay between the issuance of notification undersection 4 , (10th October, 1932) and the first declaration under Sect on 6 (14th August, 1953). Delay of ' 15 Yzs was caused by the nrotracted litigation which intervened between the issuance of notification under Sectio'n 4 00th October, 1952) and ih6'second de61aration made -undersection 6 (10th October, 1967) on the conclusion of the lit;,oation which 'st~,rted in the Civil Court.in 1953. and. ended in Supreme CQurt 6n 8th May 196.1 and which was follo~ved'b,,t-'~ Ye view i)etition in the Suor6me~ Co.uH- which in its Yurn was ,~ra'nted on 13th Sentember. ' 1965. (3) ~roviso to S. 6 (2) inserted by theAniend- ment Ordinance referred. t6 above specifically saved all decle.,,,ations taidersection 6 if they were r, ide within 2 years of the said Amer,,ment Ordinance in cases in which notifications undersection 4 were issued prior to the promulgation of the said Amendment Ordinance. In that case, second declaration was made undersection 6 within 2 years from the date of the promulgation of the said Ordinance and (4) if the. statute pre-~, scribes a period of time for doing a particular thing, no further fetter on the exr ercise of that power can be placed upm the general notion that the power. ouaht to have been exercised within a reasmable Period of time.

22. These grounds of reversal do not affect the implied acceptance or approval by the Supreme Court of the principle that where the statute does not Prescribe any period of time for the exercise of a particular power, it must be exercised -within a reasonable period of time

23. In the instant case, we are con,cerned with delay between the declar4-, tion made undersection 6 and the notice issued undersection 9 a period of 4'12 years. Therefore, this delay can be tested on the ground of reasonableness. Now, what is a reasonable period..of time in a given case depends upon the facts of that case. It is a highly flexible concipt and its application varies froilp case tol case - depending upon the facts of each case.

24. There is nothing on recordjn, the instant case to show why notice dersection 9 was issued after a lapse o 41/2' years from the date of the declara ion tra undersection 6 except that the add ndum was issued some time in Aecember, 1979. We have already held that the ad~ dendum. was purely elucidatory and did not bring about any change in the area or the identity of the land under acquisition. Secondly, need to issue t1te addendum could not have withheld the issuance of notice undersection 9 . Assuming that we are wrong in making this observation, addendum could have been i&sued; in 1977 when the Town Planning Scheme became a Part of the Bombay Town Planning Act. We. therefore, see no reason why more than 4% v '. ears should have been taken for the issuana of the notice undersection 9 . Such a Iona lapse. of time subjects the la*ad owner,to a nurnber of unforeseen aiiJd avoidable hardshins. Some of them , listed below.-, W it freezes the inveqt- rnerxt of the owner in dhe land far an unduly lona tzu4o., (2) he can onbr evt market ralue as cm the date of the r9otific&tion; rmder S,~Ction 4. (3) he will not be able to take ,Avantage of rises in the 12nd WiMs, (4) Ae will not be able to JmProve the land or repair the building, if a building is. under acquisition. even though it may be requiring urgent repairs, except Probably at the cost of losine such an outlay, (5) the owner will enjoy only a qualified ownership and en-,ioyment of his property during this period because he earmot build upon the land under acquisition, (6) he cannot )profitably let it out because no stood tenant, under the fear of being thrown out at any time, will. take it on rent. and (7) the Govermnent can always withdraw under Section 48(1) from acquisition before possession has been taken if prices are falling while the owner has no corresponding choice if the prices are rising. The interest on the amount of compensation allowed at 4112% per annum is no substitute or solace for the loss which the owner suffers under several heads. Profits which investment in business brines or the interest which a Bank charges its unsecured borrowers are manifold higher than this paltry interest at 4/2% P. a. We are, therefore, ofthe opinion that notice undersection 9 ought to have been issued within a reasonable period of time from the Dublication of the declaration undersection 6 and, since it was not done in this case, it renuifes to be struck down.

25.The last contention which Mr. h s Pa~tel as raised is that the recitals made in the notification issued undersection 4 and the declaration made undersection 6 are vitiated because at the relevant time there was no need for the land. In other words, the impugned aeaulsition was arbitrary. In that behalf. he has invited our attention to Para 14-A in the petition. ' The material averments which have been made and which have not been contro verted on behalf of the respondents are as follows. The first averment isthat Gujarat Housing Board did not have any scheme on hand at the rplevant time for the construction of ouses.Proceeding further ,t has been stated bv the netitioners that the need for land foi a nub I -if, purpose must be an existine 'need or a n a nmximate futtire. It is further JIA,,r) jj the netition tbzJ no ster)s ws~-,-e for ehyril ar, tbe of the. notifiQation. 3',*.- ic%l 4, -,:na_3 Yto uevd for the aequisition of the land in que,~Uon nor was there any 'need! in the r,ear future for it at that time.section 4 of the Land Acquisition Act provides: 'Whenever it appears to the appronriate Government that land in any locality is needed or is likely to be needed for any public purpose,...'. The expression 'is needed' has referencetothe existingneed. The expression 'is likely to be needed' has reference to the future need. It cannot be gainsaid that a future need has reference to a foreseeable future. If land is not needed for a public purpose in a foreseeable future but is likely to be needed at a very distant or remote Point of time for an anticipated need which may or may not come into existence, then, unless the need can be foreseen in. a foreseeable future, no resort can be had to Section 4. In support of this argument,of his, it has been urged by Mr. Patel that, looking-back, it can be said without any fear of contradiction that in 1972 the State Government did not need the land until 1980. The argument which Mr. Patel has raised is well founded. It appears to us that the notification undersection 4 was issued in 1972 more for an illusory need in a distant future than for a need which could be visualized and foreseen in near future.

26. It is necessarv in this context to note another averment which has beeia made in the petition in Para 15. 'This the petitioner has reason to believe, as the petitioner understands that the Land Acquisition Officer has kept ready his award only for declaration.' This averment has not been controverted on behalf of the respondents. However even in absence of any denial, it is diffl-ult to hold that the petitioners had a definite knowledge that the Land Acquisition Officer,had prepared before he heard the petitioners his award and had kept it ready for being pronounced. But this averment which has not been controverted by the respondents tends to show that whereas for eight years the respondents were not in a hurrv to complete the land acouisition proceedings, they appear to be in hot hurry now, to complete them. This aspect lends factual weight to the observation which we have made that in 1972 when the State Government issued notification undersection 4 of the Land A-muisition Act, it not only did not have ~~ny existinq need but it also did not have ?nv need 5,xibieJi could be,foreseer. in a foreseeable future, - Therefore. the land a~,,,,_-oiiaition Drnceedinv.ri which began with publication of the notification undersection 4 were vitiated and they did not fall within the compass of Section 4.

27. We have answered all the contentions which Mr. Patel has raised before us and also one which has been raised on behalf of the respondents by Mr. Takwani. In view of the findings which we have recorded on all the contentions raised by Mr. Patel except one, we are of the opinion that notification- issued undersection 4 and the declarat-17on made undersection 6 and the notice~-undersection 9 of the Land Acquisition Act are liable to be quashed.

28. In the result, all the netitions succeed. The impugned notification undersection 4 declaration undersection 6 and *e notice undersection 9 are quashed. Rule is made absolute in each of the five petitions. The respondents shall r)ay to the petitioners costs in Special Civil Aj)plication No. 724 of 1980. In other writ Petitions, there shall be no order as to Costs.

29. Petitions allowed.