Case: State Of Gujarat Vs. Bhogilai, Keshavlal &amp; Anr

2. The first respondent in this case owned certain land bearing Final Plot No. 38 forming part of Town Planning Scheme No. III (Ellisbridge) situate within the city of Ahmedabad. At the request of the second respondent Sri Ayodhya Nagar Co-operative Housing Society Ltd., registered under the Bombay Co-operative Societies Act, 1925, now deemed to be registered under the Gujarat Co-operative Societies Act, 1961, formed with the object of enabling its members to construct houses, the State Government on August 3, 1960 issued a notification under Section 4 stating that the land was likely to be needed for a public purpose. This was followed by a notification of the State Government dated August 21, 1961 under Section 6 of the Act stating that the land was to be acquired at the expense of Sri Ayodhya Nagar Co-operative Housing Society Ltd. for the public purpose specified in column 4 of the schedule annexed thereto. The public purpose specified in column 4 of the schedule was For construction of houses for Sri Ayodhya Nagar Co-operative Housing Society Ltd., Ahmedabad. The entire expense of the acquisition was to be borne by the second respondent, i.e., the Co-operative Housing Society. The first respondent moved the High Court under Article 226 of the Constitution challenging the validity of the notification under Section 6 on the ground that the acquisition of the land for a public purpose at the expense of the second respondent was legally invalid. On December 4, 1961 the High Court issued an ad interim injunction restraining the appellant from proceeding with the acquisition proceedings. While this writ petition was pending, the State Government by its notification dated May 27, 1963 cancelled the notification under Section 6. On September 10, 1964 the State Government issued a fresh notification under Section 6 stating that the land was to be acquired at the public expense, for the public purpose specified in column 4 of the schedule. The public purpose specified in column 4 of the schedule was For housing scheme undertaken by Sri Ayodhya Nagar Co-operative Housing Society Ltd.3. The High Court following its earlier decision in Dosabhai Ratansha Keravala v. State of Gujarat ((1970) 11 Guj LR 361) struck down the second notification under Section 6 dated September 10, 1964. It held inter alia that (1) the first notification under Section 6 issued on August 21, 1961 being an acquisition for a society at its cost, was valid and the government could have proceeded to complete the acquisition under it but, under a false sense of apprehension as to its validity, the government cancelled it on May 27, 1963.

Reasoning:
There was no justification for cancelling the first notification under Section 6 and even if the government wanted to cancel it out of a feeling of apprehension as to its validity, the government need not have taken one year and ten months to do so. (2) After the issue of the first notification under Section 6 on August 21, 1961, the notification dated August 3, 1960 under Section 4 was exhausted and, therefore, could not be used to support the second notification issued under Section 6 on September 10, 1964. (3) The cancellation of the first notification under Section 6 by the notification dated May 27, 1963 did not have the effect of reviving the notification under Section 4 so as to make it available for supporting the second notification under Section 6. The second notification under Section 6 not being supported by any notification under Section 4 was consequently invalid. (4) A notification under Section 6 in order to be valid must follow within a reasonable time after the issue of a notification under Section 4. The notification under Section 4 was issued on August 3, 1960 and the second notification under Section 6 on September 10, 1964 and there was thus an interval of about four years and one month between the two notifications. This interval of time, could not be regarded as reasonable. Even tested by the yardstick of reasonable time provided by the legislature in the second proviso introduced in Section 6 by the Land Acquisition (Amendment and Validation) Act, 1967, namely three years, the period of about four years and one month between the two notifications under Section 4 and Section 6 would be clearly unreasonable. The second notification must, therefore, be held to be invalid on this ground also4. We are clearly of the opinion that the High Court was in error in striking down the second notification under Section 6 issued on September 10, 1964The first notification issued by the government under Section 6 for acquisition of the land for a public purpose, at the expense of the second respondent, the Co-operative Society, was, therefore, invalid. The State Government was, therefore, justified in issuing the second notification under Section 6 after removing the lacuna i.e., by providing for acquisition of the land for the said public purpose, at public expense7. In the present case, the question, however, does not arise as the first notification under Section 6 dated August 21, 1961 being invalid, the government was not precluded from making a second notification. Due to the invalidity of the notification under Section 6, the notification under Section 4 still held the field and on its strength another notification under Section 6 could be issued. It is, therefore, not necessary to deal with the effect of the validating ActWhere, as in this case, the notification under Section 6 is incompetent and invalid, the government may treat it as ineffective and issue a fresh notification under Section 6. This is what, in substance, the government did in this case. The cancellation on April 28, 1964 was no more than a recognition of the invalidity of the earlier notificationThe first notification issued under Section 6 on August 21, 1961 was obviously invalid and of no effect. By the issue of this notification, the government had not effectively exercised its powers under Section 6. In the circumstances, the government could well issue a fresh notification under Section 6 dated September 10, 1964The respondent had not taken any such ground in the writ petition filed by him. The High Court was, therefore, not justified in observing that the appellant had not explained the delay by filing any affidavit. We fail to appreciate that if there was no ground taken, there could be no occasion for filing of any such affidavit. Further, the delay, if any, was of the respondents own making. He had challenged the first notification under Section 6, presumably on the ground that the acquisition being for a public purpose, could not be made at the expense of the second respondent. The challenge was justified and the State Government, therefore, withdrew the first notification under Section 6 without waiting for an order of the High Court. The cancellation was in recognition of the invalidity of the notification. The government had no intention of withdrawing from the acquisition. Thereafter, the government issued a fresh notification under Section 6 making a declaration for acquisition of the land for a public purpose at public expense. There is nothing in the Act which precludes the government from issuing a fresh notification under Section 6, if the earlier notification is found to be ineffective. The delay of one year and four months between the date of cancellation and the issue of the second notification cannot be regarded to be unreasonable, in the facts and circumstances of the case. In somewhat similar circumstances, this Court recently in Gujarat State Transport Corpn. v. Valji Mulji Soneji ((1979) 3 SCC 202  ) held the delay of about fifteen years in making the second notification under Section 6 not to be unreasonable. We cannot, therefore, uphold the High Courts decision that the second notification must be struck down on the ground of delay.