KANAIYALAL MANEKLAL CHINAI & ANR. versus STATE OF GUJARAT & ORS.

KANAIYALAL MANEKLAL CHINAI & ANR.

STATE OF GUJARAT & ORS.

October 17, 1969

(J. C. SHAH AND K. S. HEGDE, JJ.J

ss. 3(3) &

Commi.uioners of Divisions Act (Bom. Act 8 of 1958) ss. 3(3) & 3(4)-Valtduy of powers giVt!fl to State Governn1ent-Notice under s. 4 L(~!l1.Acquisition Act (1 of IS94) given by Cotn1nissioner Alunedabad ~tv1s1on ( Bo111bay)-Notice under s. 6 giiJen by Con11nissioner Baroda Divi-.Holl ~Gujarat)-Va/idity of notice under s. 6-Provilicial Municipal Cor .. porat1on Act, 1949-Municipality of A/unedabad requesting State Govern .. 111e11t to r.cquire land for mernorial to A-tahatn1a Gandhi-Conunissioner in acquiring land lVhetlzer nucst follo1v procedr1re in ss. 77 & 78 of Act-A1 unicipal purpose and 'public purpose'-Mention of 'instr111nentality' for carrying out purpose whether necessary to f,12J<e notices under ss. 4 and 6 of land Acquisition Act enforceable-Application of n1ind by Commis-sioner.

The Ahmodabad Municipal Corporation resolved to move the Govern· ment of Bombay State (then undivided) to acquire part of land belong-ing to the appellants for setting up Santadhi of Mahatma Gandhi. The Commissioner of Ahmedabad Division acUng under the Land Acquisition Act, 1894, as an1cnded by the Con1missioncrs of Division Act, 1958. issued notification under s. 4 of the former Act declaring that the land was likely to be required for public purpose. Thereafter the State of Bombay \Vas divided and city of Ahmedabad. became pa1t of the State of Gujarat. The notice under s. 6 of the Land Acquisition Act in respect of the appel· Jants' land was issued by the Commissioner, Baroda Division of the State of Gujarat who by virtue of the Bombay Reorganisation Act, 1960 was the .appropriate authority to do so. The appellants moved petition in the High Court of Gujarat for writ quashing the proceedin_gs t11k[1].::1 under the Land Acquisition· Act and restraining the authorities from enforcing the notifications under ss. 4 and 6. The High .Court re.ie~ted the petition. \Vith certificate, an appeal was filed in this G:lurt. The appellants eon-tcnded: (i) that the Commissioners of Divisions Act, 1958 was ultra vires the legislature; (ii) that .the Commissioner Baroda Division was incompe· tent ·to issue notification under s. 6 without issuing fresh notification under s. 4; (iii) that the notifications were defective because ·of non. compliance with ss. 77 and 78 of the Provincial Municipal Corporation Act, 1949 and because the purpose for which the acquisition was sought to be made was not municipal purpos:::; (iv) that the notifications were uncnfdrceable because the "instr~1mcntality" to carry out the purpOse _was not set out in the notifications; (v) that the Commissioner had not app)ied l1is mind·to the ev"idencc. when i~suin.g the notifica1ion under s. 6.

HELD: (i) Bccau~c of the decision of this Court in Arnohl Rodericks . & nr. the challenge to the vircs of the Commissioners of Divisions Act, 1958 on the ground of exCessivc delegation of powers of the State Govern- . tnent and abdication of the functions of the Legislature, must fail. [912 G· 913 A]

mold Rodricks & Anr. v. Stc.te of Maharashtr(t & Ors. [1966] 3 S.C.R. 885 followed ond applied.

(ii) The notification under s. A. W.?.s issued by the Commissioner Ahnredabad Division who was competent to issue it as an officer of the

State of Bombay. The Con1mis~.ioncr of Baroda \\'as competent to cxcrcisi: 1.he po·n-·ers und~r the Commissioners of Divisions Act which continued to remain in force in the new State of Gujarat in respect of the Land Acqui-sition Act ;,n1d he had on that account po\\·er to issue i notification under s. 6 of th!.' Act. There \Vas nothing in the Land ,o\cquisifrJn Act or the Commissioners of Divisions Act requiring that in order to invest the noti-fication under s. 6 \\'ith validity, the Commissioner of the State of Gujarat h;::J in the first instance to issue notification under s. 4. [913 B-Ej (iii) Exercise of pO\.VCr to move the State under s. 78 of the Provincial \lunicipal Cc'rporation Act is not conditioned by prior attempt at pur-chase oy agrecm~nt in the manner laid do\\·n in s. 77. The oj)cning, cl~tusc of s. 78 merely indicates an alternative and not con<lition. Even if no attempt, is n1ad: under s. 77 to acquire the land by agreement. it is open to the Co1nmissioncr of the !\funicipal Co'rporJtion \vith the approval of the Standing Cotnmittce and subject to the other provi-;ion:-. of the Act, co move the Provincial Govi.:rnmcnt to take sto;::ps for the acquisit'on of land. [914 D-E]

The notifi:ation unr.lcr s. 4 of the Land Acquisition Act did not rcf;.!r to any purpose of the Ahmc<labad ~lunicipal Corporaticin nor was thl! ;.1cquisition for purpose for which the Commissioner -w·as required by th~ provisiC!n·, of the Provincial 'totlunicipal Corporati.,n Act, 1949 to acquin.' the land. But since the land was required for ~ctting- up memorial tl' Mahutma Gandhi who is held in 1Jniversal vene·ration in this country, :1t place assoeiat~J with him, the purpose \Vas public purpose within thi.:-norn1al connotation of that expression as used in s. 4 of the Land Acqui:-.i-tion Act. That being so it \Vas unnecessary to rely upon the c:.-.tcn<lcd meaning of the cxpr.::~sion 'public purpose' as provided by s. 78( l) of thi: Provinciul ~lunicipal Corporation Act. 1949. [915 A·D]

Whether the municipal funds if used for the public purpose of scttin.~! up of 01 memorial to Mah:.ittna Gandhi would he lawfully utilised "·as not n1attcr within the periphery of the enquiry in the pres.cnt ~1ppea1. 191 ~ El

(iv) F<iilur~ to specify the in!-!trumentality which is to execute thi.:o puhlic purpose docs not affect the validity of the notific3tion either undcl' s. 4 or under s. 6 of the Land Acquisition Act [916 A]

Ramji Popatlwi v. Jamnadas Shah, (1969) Gui. L.R. 164. upprovcd.

Vishnu Pra.'icid Rtunc/r;s Gohil & Ors. v. Tlte State<•! (i11jul'(1t, (1970j ~ S.C.R. followed,

( v) ()n, the facts of thi.:o case thc"re was no justification fer the- an~un1cnt that the Commissioner Baroda Division did not apply hi~ n1ind in ·hsuin!.! the r,otification under s. 6. [916 BJ · C!vn. APPELLATE JURISDICTION : Civil Appeal No. 1102 of 1967.

Appeal from the judgment and order dated July 28, 29. 30. 1965 of the Gujarat High Court in Special Civil Application No. 622ofl96l.

S. V. Gupte, H. H. Chatrapati and B. Datta, for the appellan1'.

N. S. Bindra a.nd S. P. Nayar, .for respondents Nos. [ to 3.

B. Sen and M. N. Shroff, for respondent No. 4.

Shah, J. The appellants are owners of "China Baug" situated on the southern bank of the river Sabarmati within the limits of the Municipal Corporat!on of Ahmedabad. The Ahmedabad Municipal Corporation resolved to move the State Government to acquire part of the land of the appdlants for setting up S@iadhi of Mahatma Gandhi. On Septen!ber l 0, 1959, the Commissioner. Alunedabad Division, in the State of Bombay, issued notifica-tion under s. 4 of the Land Acquisition Act, stating :

"Whereas it appears to the Commissioner, Ahmeda-bad Division, that the lands specified in the schedule hereto are likely to be needed for pub!ic purpose viz. for 'The Memorial of Rashtrapita Mahatma Gandhi' :

It is hereby notified under the provisions of Section 4 of the Land Acquisition Act, 1894 (I of 1894) "that the said lands are likely to be needed for the purpose specified above".

Enquiry was made under s. SA of the Land Acquisition Act and after receiving the report of the Collector, the Commissioner, Baroda Division of the State of Gujarat (who by virtue of the Bombay Reorganization Act, 1960, was the appropriate authority) issued notification under s. 6 of the Land Acquisition Act on August 31, 1961, that the lands were required for the public pur-pose specified in column 4 of the schedule to the notification i.e. "Memorial of Mahatma Gandhi".

The appellants moved petition in the High Court of Gujarat for writ quashing the proceeding under the Land Acquisition Act and the two notifications dated September I 0, 1959 and August 31, 1961 and for writ restraining the Commissioner, Baroda Division, and the Government of the State of Gujarat from enforcing the notification~. The High Court rejected tlie petition. With certificate granted by the High Court u:-ider Art. 133(1 )(c) of the Constitution this appeal is preferred by the appellants.

Counsel for the appellant contended that :

(I) that the Commissioners of Divisions Act 8 of 1958 pursu.ant to_ which the Commissioners of Divisions were vested with authority to discharge statutory func-tions vested in the State Commissioner was ultra vires the legislature.

(2) that in any event the Commissioner, Baroda Division, State of Gujarat was incompetent to issue the notification under s. 6 without issuing fresh notifica-tion under s. 4:

Baroda

(3) that since the land was notified for acquisition for the purposes of the Municipal Corporation the pro-visions of ss. 77 and 78 of the Provincial Municipal Cor-porations Act, 1949, should have been complied with. Jn any event acquisition of land for "a Memorial to Mahatma Gandhi" was not acquisition for Municipal purpose and the notifications were without the authority of law;

( 4) that the "instrumentality" which was to carry out the purpose not having been set out in the notifications under ss. 4 & 6 tile notifications were illeirnl and on that -account unenforceable; and

(5) that the Commissioner, Baroda Division, in issu-ing the notification under s. 6 did not apply his mind to the evidence before him and on that account the notifi-cation was liable to be struck down.

To appreciate the two branches of the first contention, 1t 1< necessary to set out the relevant statutory provisions. By s. 4 of the Land Acquisition Act, as amended by the Adaptation of Laws Order, 1950, it w.as enacted that whenever it appears to the appropriate Government that land in any locality is needed or is likely to be needed for any public purpose, notification to that effect shall be published in the Official Gazette, and the Col-E lector shall cause public notice of the substance of such notification to be given at convenient places in the said locality. Section 6 I 1 I, insofar as it is relevant, provided :

"Subject to the provisions of Part VII of this Act, when the appropriate Govt. is satisfied, after considering the report, if any, made under section SA, sub-section (2), that any particular land is needed for public pur-pose, or for Company, declaration shall be made to that effect under the signature of Secretary to such Govt. or of some officer duly authorized to certify its order& "

The Legislature of the State of Bombay enacted the Conunis-sioners of Divisions Act 8 of 1958. By s. 3 of that Act it \\'as provided :

"(l) For the purposes of constituting offices of Commissioners of divisions and conferring powers and imposing duties on Commissioners and for certain other purposes, the enactments specified in column 1 of the Schedule to this Act shall b' amended in the manner and to the extent specified in column 2 thereof.

(2) The Commissioner of division, appointed under the Jaw relating to land revenue as amended by the said Schedule, shall exercise the powers and dis-charge the duties conferred and imposed on the Com-missioner by any law for the time being in force, includ-ing the enactments referred to in sub-sect\on (1) as amended by the said Schedule.

(4) The State Government may confer and impose on the Commissioner powers and duties under any other enactment for the 'time being in force and for that pur-pose may, by notirication in the Official Gazette, add to or specify in the Schedule the necessary adaptations and modifications in that enactment by way of amend-ment; and thercupon-

(a) every such enactment shall accordingly be amen-ded and have effect subject to the adaptations and modi-fications so made, and

(b) the Schedule to this Act shall be deemed to be amended by the inclusion tlrrein of the said provision for amending the enactment".

The Government of the State of Bombay issued on September 5, 1958 notification under s. 3(4) of the Commissioners of Divi-sions Act, conferring and imposing on the Commissioners con-cerned the powers and duties under the enactments specified therein and for that purpose added to and specified in the Schedule to that Act certain adaptations and modifications in those enactments by way of amendment. In the Land Acquisition Act, in s. 4(1) after the words "appropriate Government" the words "or the Commis-sioner" were inserted, and in s. 6(l)(a) after the words "appropriate Government" the words "or, as the case may be, the Commis-sioner" will be inserted.

It is unnecessary to consider the elaborate arguments which were presented before the High Court that ss. 3 (3) and 3(4i of the Commissioners of Divisions Act 8 of 1958 constituted exces-sive delegation of legislative power to the State Government result· tina in abdication of the functions of the State Legislature, and we~e on that account invalid. This Court has in mold Rodricks & Anr. v. State of Maharashtra & Ors.(') by majoritiy held that the powers conferred by s. 3 ( 4) ~n the State Goverm11~nt& are not u,nguided and that the S~ate Legislature has by. enactm~ s. 3(~) not -abdicated its powers m favour o,f the execut1v«, for It has laid

(1) (1966] 3 S.C.R. 885.

down the legislative policy and has left it to the State Government to reorganise the administration. consequent on the setting up of Conuniss10ners Divisions. The challenge to the vires of the Conunissioners of Divisions Act 8 of 1958 must fail.

The notification under s. 4 of the Land Acquisition Act was issued by the Commissioner, Ahmedabad Division, exercising powers as an officer of the State of Bombay. But after the notifi-cation was issued, the State of Bombay was reorganized and the area in which the land is situated was included in the new State of Gujarat. The Commissioner of Baroda Division was competent to exercise the powers under the Commissioners of j:)ivisions Act which continued to remain in force in the new State of Gujarat in respect of the Land Acquisition Act and had on that account power to issue notification under s. 6 of the Act. The notification under s. 4 was issued by the Commissioner, Ahmedabad Division, who was competent to issue it in the set-up then in existence and the Commissioner competent to issue the notification under s. 6 had issued that notification. The authority of the Commis-D sioner of the State of Gujarat to issue the notification under .;ection 6 not being open to challenge, there is nothing in the Land Acquisition Act or the Commissioners of Divisions Act, which requires that to invest the notification under s. 6 with validity, the Commissioner of the State of Gujarat had in the first instance to issue notification nnder s. 4 of the Act de-E claring that the land was needed or was likely to be needed for any public pnrpose.

Turning to the second contention, the relevant statutory pro-visions may first be read. Section 77 of the Provincial Municipal Corporations Act, 1949, insofar as it is relevant, by snb-s. (1) provides:

"Whenever it is provided by this Act that the Com-missioner m:i,y acquire or whenever it is necessary or ex-pedient for any purpose of this Act that the Commis-sioner shall acqnire, any immovable property, such pro-perty may be acquired by the Commissioner on behalf of the Corporation by agreement on such terms or prices and at such rates or prices or at rates or prices not ex- . ceeding such maxima as shall be approved by the Stand-ing Committee either generally for any class of cases or specially in any particular case."

Section 78(1) provides :

"Whenever the Commissioner is unable under sec-tion 77 to acquire by agreement any immovable pro-Pl'rly, . . . . the Provincial Gcwerliment

may, in its discretion, upon the applica.tion of the Com-missioner, made with the approval of the Standing Com-mittee and subject to the oJher provisions of this Act, order proceedings to be taken, for acquiring the same on behalf of the Corporation, as if such property ....• were land needed for public purpose withi,n the meaning of the Land Acquisition Act, 1894."

There is nothing in ss. 77(1) & 78(1) which supports the conten-tion that before initiatio~ of proceeding for acquisition of land, which it is necessary or expedient for any purpose of the Municipal Act to be acquired, the Commissioner of the Municipality must start negotiations for purchase by private agreement, and if he is unable to so purchase the land the State Government may be mov-ed for acquiring the land for the Municipality, and not otherwise.

Exercise of p0•ver to move the State under s. 78 of the Pro-vincial Municipal Corporations Act, to acquire land is not condi-tioned by any such limitation as suggested by counsel for the appellant. The opening clause of s. 78(1) merely indicates an alternative and not condition. Even if no attempt is made under s. 77 to acquire the land by agreement, it is .open to the Commis-sioner of the Municipal Corporation with the approval of the Standing Committee and subject to the other ·provisions of the Act, to move the Provincial Government to take steps for acquisition of the land. By statutory provision, it is expressly enacted that where the purpose is one for which the Commissioner of the Muni-ciapality may require the land under the provisions of the Pro-vincial Municipal Corporations Act, 1949, or is purpose of tbe Act for which it is deemed necessary or expedient by the Com-missioner of the Municipality to acquire the land, such purpose shall be regarded as public purpose within the meaning of s. 4 ( 1) of the Land Acquisition Act, even if it does not fall within the expression "public purpose" as normally understood.

The High Court was of the view that setting up of memorial to Mahatma Gandhi falls within cl. ( 42) of s. 66 of the Provincial Municipal Corporations Act, and therefore within the com-petence of the Municipal Corporation. Section 66(42) authorises the; Corporation, in its discretion, to provide from time to time either wholly or partly, in the matters, inter alia, of any measure likely to promote public safety, health, convenience or instruction, and in the view of the High Court "setting up Samadhi or memo-rial of the type could be fairly regarded as incidental to the right and power to give public instruction which is matter within the competence of the Municipal Corporation under cl. ( 42) c.f s.-66'. It is not necessary for us to express any opinion on this part of the case, for, we are clearly of the view that tte notification

under s. 4 of the Land Acquisit_ion Act does not refer to any pµr-pose of the Ahmedabad Municipal Corporation, nor is the acquisi-tion for purpose for which the Commissioner is requi.-ed by the provisions of t_he Provincial Municipal Corporations Act, 1949, to acquire the land. The land is needed for setting up memorial to Mahatma Gandhi at place associated with him, and we re-B gard, because of the universal veneration in which the memory of Mahatma Gandhi is held in our country, that the purpose was public purpose. Counsel for the appellants has not attempted to argue that acquisition of land for setting up memorial to Mahatma Gandhi at place which has some association with him is not public purpose. He merely argued that setting up of memorial _to Mahatma Gandhi is not ~ purpose for which the Com, missioner is required by the Provincial Municipal Corporations Act, 1949, to acquire the land, nor is it purpose of the Munici-pality under the Municipal Corporations Act. The purpose of ac-quisition being one which falls within the normal connotation of the expression "public purpose" within th.~ meaning of s. 4 of the Land Acquisition Act, it is unnecessary to rely upon the extended meaning of the expression "public purpose" as provided by s. 78(1) of the Provincial Municipal Corporations Act, 1949.It was urged that municipal funds were, contrary to the pro-visions of the Provincial Municipal Corpo:ations Act, 1949, inten-ded to be utilised for setting up memorial to Mahatma Gandhi. But we are not concerned in the present case to determine whether if the funds are utilised, they will be lawfully utilised : that is matter which is not wiihin the periphery of the inquiry in this appeal. The land is being acquired for purpose which is pub-lic purpose, and once that condition is fulfilled no further inquiry need be made, whether if the municipal funds are to be utilised for setting up memorial to Mahatma Gandhi after the land is vested in the State after acquisition, the Municipality will be acting within the limits of its authority. We may observe that notification issued under s. 6 is by sub-s. (3) conclusive evidence that the land is needed for public purpose.

The Land Acquisition Act does not provide that the instrumen-tality which is to carry out the purpose musrbe set out in the noti-G fications under ss. 4 & 6 of the Act. The Gujarat High Court in Special Civil Application No. 800 of 1961. Chandulal Patel v. The State of Gu)arat-held that if the public purpose for which land is notified for acquisition is to be executed through "an in-strumentalitv other than the State Government." failure 10 5Deci-fically mention "the instrumentality" in the notifications rencers th~ notification invalid. But i~ Ramii Popatbhai v. Jamnadas S/nh(') Full Bench of the High Court has overruled that e:irfier

(I) (1969) Guj. L.R. 164.

L5ln C.L/70-13

judgment. In Vishnu Prasad Ramdas Gohil & Others v. The State of Gujarat(') we have held, agreeing with the view of the Full Bench of the Gujarat High Court, that failure to specify the instru-mentality which is to execute th_e public purpose does not affect the validity of the notification either under s. 4 or under "· 6 of the Land Acquisition Act.

There is no substance in the argument that the Commissioner, Baroda Division, did not apply his mind in issuing the notification under s. 6. The land notified for acquisition under s. 4 was 3428 sq. yards 3 sq. ft. out of Survey No. 348B, and 494 sq. yards 5 sq. ft. out of Survey No, 349. The area of the land notified under s. 6 was stated to be 3562 sq. yards out of Survey No. 348B and 387 sq. yards out of Survey No. 349. Even though the area of land out of Survey No. 348B exceeded the area originally mentioned in the notification under s. 4, the Commissioner stated in the impugned notification that "the remaining area of the said lands notified under section 4 .. · .. is hereby abandoned". It was urged that there was no "remaining area" of the land out of 5urvey No. 348B which could be abandoned and the recital indicated that the Commissioner did not apply his mind to the relevant materials on which the noti-fication was to be issued. It is, however, to be noticed that the entire Survey No. 348B was not notified for acquisition : only part of the land was notified for acquisition under the notification under s. 4. Under that notification. 3428 sq. yards 3 sq. ft. were notified, but the notification under s. 6 the declaration related to 3562 sq. yards. Under the notification under s. 6 it was recited that the remaining area of the land out of Survey No. 348B was declared as not likely to be needed for public purpose. The use of the expression "the remaining area of the said lands notified under section 4 ...... is hereby abandoned" does not justify an inference that the Commissioner did not apply his mind. It may be reasonably inferred that it was intended to be coriveyed thereby· that part of the land out of Survey No. 348B which was not need-ed for public purpose was excluded from the notification.

The appeal fails and is dismissed. Having regard to the cir-cumstances of the case, there will be no order as to costs.

Appeal dismissed.