JUDGMENT

SHINGHAL, J.:— This is an appeal by the defendant State of Gujarat and another against the appellate judgment and decree of the Gujarat High Court dated February 17/18, 1972) on a certificate under Art. 133 (1) (b) of the Constitution as its stood before the Constitution (Thirtieth Amendment) Act, 1972.

2. The case arose on a suit instituted by the plaintiff Sankalchand Khodidas Patel on 8-2-1961, to challenge the validity of the notifications issued by the defendant State under Ss. 4 and 6 of the Land Acquisition Act, 1894 (hereinafter referred to as the Act) in respect of land bearing survey number 146, in Dariapur-Kajipur area of Ahmedabad city. The notification under S. 4 was issued on May 23, 1958, in respect of 1 acre 36 gunthas of land. It was stated in the notification that the land was likely to be needed for a "public purpose, viz., for the constructing of houses for New Sarvodaya Co-operative Housing Society Ltd., at Dariapur-Kazipur, Ahmedabad." An erratum was issued on August 20, 1959, by which it was further clarified that the land was required for "providing housing facilities of New Sarvodaya Co-operative Housing Society, Ltd., for Backward Class peopel at Dariapur-Kazipur, Ahmedabad." The notification under S. 6 of the Act was issued on August 13, 1960, in which it was declared, inter alia, that the land was required for the "public purpose specified in column 4 of the Schedule, namely, for providing housing facilities for the Backward Class people referred to above. The plaintiff prayed for a declaration that the notifications were illegal and null and void, and for a perpetual injunction restraining the defendants and their agents etc. from taking possession of the land or disturbing the plaintiffs possession.

3. The defendant traversed the claim in the plaint and specifically pleaded that the acquisition was for a public purpose and that it had (as the acquiring body) "agreed to pay the amount of compensation when asked for to the plaintiff". The City Civil Judge dismissed the suit by his judgment dated March 1, 1966. The High Court however allowed the plaintiffs appeal, set aside the trial courts decree, declared the notification under S. 6 of the act to be bad in law and void, and perpetually restrained the defendants from enforcing the notification and from taking any further steps in pursuance thereof. This is why the State has come up in appeal to this Court.

4. A perusal of the impugned judgment of the High Court shows that while it decided some of the points in controversy against the plaintiff, it allowed the appeal because it took the view that the acquisition was not for a public purpose within the meaning of S. 6 of the Act as "the intention declared by the Government to pay the amount of subsidy to the Additional Special Land Acquision Officer in respect of the land under acquisition has been by necessary implication abandoned." The short question for consideration in this appeal is whether this finding has been arrived at according to the law.

5. We have gone through the pleadings of the parties and the points on which they were at issue in the trial Court. We find that while issue No. (3) raised the question whether the State Government had agreed to contribute towards the cost of acquisition and issue number (8) dealt with the question whether the acquisition was for a public purpose, a plea was not taken in the trial court that the defendant State abandoned its intention to pay a part of the compensation, to be awarded for the property wholly or partly out of public revenue. It was therefore not permissible for the High court to decide the controversy on a pleae which was not taken at all and which was not the subject-matter of any issue at the trial. There is nothing in the record to show that the parties knew that the question of abandonment of the original intention was a point for trial, or that they had any opportunity to lead their evidence in regard to it and availed of that opp