1966 Supreme(Bom) 66

IN THE HIGH COURT OF BOMBAY
(S. P. Kotval C. J. and B. D. Bal J )
BASTYAN JAO PATIL - Petitioner.
v.
SPECIAL LAND ACQUISITION OFFICER, Thana - Respondent.
Advocates Appeared
For petitioner - S. T. Tijoriwala and J. C. Rajani.
For opponent No. 2 –S. J. Sorabjee instructed by Little and Co. and Mulla and Mulla and C. B C.

Headnote:

LAND ACQUISITION - NOTIFICATION UNDER SECTION 4 - VALIDITY - CONDITIONS PRECEDENT FOR ISSUE OF NOTIFICATION UNDER SECTION 6 - INTERPRETATION OF SECTIONS 40 (1) (B) AND 41 (5) - NOTIFICATION UNDER SECTION 4 NOT GOVERNED BY PROVISIONS OF SECTION 40 (1) - NOTIFICATION UNDER SECTION 4 IS A PRELIMINARY STEP TOWARDS COMMENCEMENT OF ACQUISITION PROCEEDINGS - NOTIFICATION UNDER SECTION 6 IS THE FIRM DECLARATION BY GOVERNMENT THAT LAND IS NEEDED FOR A PUBLIC PURPOSE OR FOR A COMPANY - WITHDRAWAL OF NOTIFICATION UNDER SECTION 6 - GOVERNMENT CAN WITHDRAW NOTIFICATION UNDER SECTION 6 AT ANY TIME IF IT COMES TO THE CONCLUSION THAT THE PREVIOUS NOTIFICATION WAS INEFFECTIVE OR INVALID - SECTION 48 OF THE LAND ACQUISITION ACT - SECTION 48 DOES NOT PRECLUDE GOVERNMENT FROM EXERCISING THE UNDOUBTED POWER BY VIRTUE OF SECTION 21 OF THE GENERAL CLAUSES ACT TO RESCIND A NOTIFICATION - EXHAUSTION OF NOTIFICATION UNDER SECTION 4 - NOTIFICATION UNDER SECTION 4 IS EXHAUSTED AFTER THE ISSUANCE OF THE NOTIFICATION UNDER SECTION 6 - PRINCIPLE OF EXHAUSTION OF NOTIFICATION UNDER SECTION 4 DOES NOT APPLY WHERE THE NOTIFICATION UNDER SECTION 6 IS ILLEGAL AND WITHOUT JURISDICTION - RULES FRAMED UNDER SECTION 55 OF THE LAND ACQUISITION ACT - RULES DO NOT APPLY PRIOR TO THE ISSUE OF A NOTIFICATION UNDER SECTION 4.

Fact of the Case:

The petitioner challenged the proceedings taken for acquisition of his lands for a company, M/s. Voltas Limited. Objections were invited under section 5 A, on July 25,1960 and filed by the petitioner, on August 30, 1960. The petitioner was then heard and was himself present. This was on October 17, 1960. According to the notification the lands specified in the schedule were likely to be needed for the purposes of the company viz. for factory buildings. Since the acquisition was for a company an agreement as required by section 39 of the Land Acquisition Act was to be entered into and such an agreement between the company and the Government was entered into on February 3, 1961. Thereafter a notification was issued under section 6 on March 24, 1961 followed by a notification under section 9 issued on April 11, 1961. The petitioner put in his claim for compensation on August 2, 1961 and an award was made on September 8, 1962. The award assessed the compensation for the petitioner’s land at Rs. 76,968.27 paise. The compensation assessed was not acceptable to the petitioner and so he asked for a reference under section 18 of the Act. The reference was asked for by the petitioner on October 11, 1962, but actually no reference came to be made because other events transpired in the meanwhile.

Finding of the Court:

1. The notification under section 4 is not governed by the provisions of section 40 (1) and it is not necessary to ensure that the conditions required by clauses (a), (aa) and (b) of section 40 (1) are fulfilled before the notification under section 4 is issued. 2. A notification under section 4 is a sort of preliminary step assisting in the formation of the intention to acquire and does not form part of the acquisition proceedings as such. 3. The notification under section 6 is the firm declaration by Government that land with proper description and area so as to be identifiable is needed for a public purpose or for a company. 4. Government can withdraw a notification under section 6 at any time, if it should come to the conclusion that the previous notification was ineffective or invalid. 5. Section 48 of the Land Acquisition Act does not preclude Government from exercising the undoubted power by virtue of section 21 of the General Clauses Act to rescind a notification. 6. The principle of exhaustion of notification under section 4 does not apply where the notification under section 6 is illegal and without jurisdiction. 7. The Rules framed under section 55 of the Land Acquisition Act do not apply prior to the issue of a notification under section 4.

Issues: 1. Whether the notification under section 4 is governed by the provisions of section 40 (1) of the Land Acquisition Act? 2. Whether a notification under section 4 is a preliminary step towards commencement of acquisition proceedings? 3. Whether the notification under section 6 is the firm declaration by Government that land is needed for a public purpose or for a company? 4. Whether Government can withdraw a notification under section 6 at any time if it comes to the conclusion that the previous notification was ineffective or invalid? 5. Whether section 48 of the Land Acquisition Act precludes Government from exercising the undoubted power by virtue of section 21 of the General Clauses Act to rescind a notification? 6. Whether the principle of exhaustion of notification under section 4 applies where the notification under section 6 is illegal and without jurisdiction? 7. Whether the Rules framed under section 55 of the Land Acquisition Act apply prior to the issue of a notification under section 4?

Ratio Decidendi: 1. Section 40 (1) (b) and section 41 (5) of the Land Acquisition Act must be read together. The words of section 40 (1) (b) can only mean that the public should have a right to use the work itself and not the product of it; and it is the duty of the Government when it takes an agreement under section 41 to see that the public is so entitled to use the work. 2. Section 4 is a sort of preliminary step assisting in the formation of the intention to acquire and does not form part of the acquisition proceedings as such. 3. Section 6 is the firm declaration by Government that land with proper description and area so as to be identifiable is needed for a public purpose or for a company. 4. Government can withdraw a notification under section 6 at any time, if it should come to the conclusion that the previous notification was ineffective or invalid. 5. Section 48 of the Land Acquisition Act does not preclude Government from exercising the undoubted power by virtue of section 21 of the General Clauses Act to rescind a notification. 6. The principle of exhaustion of notification under section 4 does not apply where the notification under section 6 is illegal and without jurisdiction. 7. The Rules framed under section 55 of the Land Acquisition Act do not apply prior to the issue of a notification under section 4.

Final Decision: Petition dismissed with costs.