Case: Khadim Hussain Vs. State Of U.P. &amp; Others

1. The appellant before us, by grant of special leave to appeal against the judgment of a Division Bench of the Allahabad High Court, challenges the validity of a Housing Scheme, first notified on 13th March, 1965, under Section 36 of the U.P. Town Improvement Act No. VIII of 1919 (hereinafter referred to as the Act), and then finally sanctioned, under Section 32(1) of the U.P. Awas Evam Vikas Parishad Adhiniyam (U.P. Act I of 1966) (hereinafter referred to as the Adhiniyam), and published on 3rd May, 1969 in the U.P. Gazette.

Reasoning:
9. It is not denied that the Improvement Trust of Gorakhpur had been actually working under the above mentioned provisions of the Act of 1919. We think that Section 100 of the Act of 1919, in the context of the whole Act, completely refutes the argument based upon a specious distinction between appointment of members of the trust and the Constitution of the Trust, and upon an unwarranted condition sought to be imposed upon the competence of members of the Trust to act said to be embedded in Section 8 which was, we think never intended to serve such a purpose.It is clear, from the provisions set out above, that the Act and the Adhiniyam apply Sections 4 and 6 of the Land Acquisition Act, 1894, to the acquisition for the scheme before us in so far as their effects are concerned. It is arguable that, if the effectiveness of the notifications under Sections 4 and 6 of the Land Acquisition Act is cut down or modified or amended in any way, subsequent to the date of the passing of the Adhiniyam, the amendments may not apply, but the effect of the notifications, where the Act and the Adhiniyam were enacted, would be all that need be considered. It is true that the notices are procedural matters, but they affect substantive rights as well. The date of notification under Section 4 affects the amount of compensation which may be determined and a notification under Section 6 operates as conclusive evidence that the land is needed for a public purpose and enables the appropriate Government to proceed to acquire the land. Nevertheless, an acquisition under Section 56 of the repealed Act as well as under Section 55 of the Adhiniyam of 1966 takes place expressly "under" the Land Acquisition Act of 1894. This may well mean that, if the machinery of acquisition is modified in some respect by an amendment, the amended machinery alone can apply. The High Court had not decided this question. We also think that it is not necessary for us to decide this question as it has not been argued, on behalf of the respondent, that the amendment of the Land Acquisition Act, 1967, would not apply here. We, therefore, proceed on the assumption that the Land Acquisition Act, as amended in 1967, was applicabledoubt both sides are agreed that, as the judgment of the High Court reveals, the date of the notification under Section 32(1) of the Adhiniyam is 3rd May, 1969. We, however, think that the appellant s contention before us ignores the very apparent distinction made in the provisions of Section 6 of the Land Acquisition Act between a declaration and its notification.It is clear from the provisions set out above that the object of the notification under Section 6 is to ensure that the Government is duly satisfied, after an enquiry at which parties concerned are heard, that the land under consideration is really needed for a public purpose and that the declaration is to operate as conclusive evidence to show that this is so. The conclusiveness of this declaration cannot be questioned anywhere if the procedure dealing with its making has been observed. The notification which takes place under Section 6(2), set out above, follows and serves only as evidence of the declaration. That the declaration mentioned in Section 6(1), set out above, differs from its notification is shown by the fact that it has to be signed by a Secretary or other officer duly authorized. The declaration is in the form of an order. The notification is its publication and proof of its existence. It has been shown, in t he case before us that the deemed notification under Section 6 took place about three and a half months after the expiry of two years from the commencement of the ordinance of 1967. But, it is not argue on behalf of the appellant that the declaration under Section 6 was similarly delayed. Presumably, it was within time. A look at the amendment introduced by the Section 4(2) of the Land Acquisition (Amendment and Validation) Act, 1967, shows that it is the declaration which has to take place within two years of the expiry of the commencement of the ordinance which came into force on 20th January, 1967. In fact, Section 4(2) of the Amendment Act of 1967, set out above, itself makes a distinction between a "declaration" under Section 6 and its "notification" under Section 4 of the principal Act. It does not say that no notification under Section 6 of the principal Act can take place beyond the time fixed. The prohibition is confined to declarations made beyond the specified period. If the case of the appellant could be that no declaration was made within the prescribed time, it was his duty to prove it. He has not discharged that onus.21. As indicated by the Division Bench of the Allahabad High Court, the amendment of 1967, was the result of a decision of this Court in the State of Madhya Pradesh & Ors. v. Vishnu Prasad Sharma &Ors. ([1966] 3 S.C.R. 557.) holding su ccessive notifications, under Section 6, with excessive intervening delay between a notification under Section 4(2) and a declaration under Section 6, keeping the owner or other person entitled to compensation in suspense all the time, to be illegal. It may be that, if an unreasonable delay between a declaration and its notification is shown to exist, it may raise a suspicion about the existence of the declaration itself or about the bona fides of acquisition proceedings. This, however, is not the position in the case before us. Neither the existence nor the bona fides of the declaration have been questioned. It has not been either asserted or shown, as already mentioned, that no declaration was made with in the period of time fixed for it. We, therefore, reject the last objection also.