Full Judgment Text
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PETITIONER:
GUJARAT STATE TRANSPORT CORPORATION, ETC.
Vs.
RESPONDENT:
VALJI MULJI SONEJI AND ORS.
DATE OF JUDGMENT03/05/1979
BENCH:
DESAI, D.A.
BENCH:
DESAI, D.A.
REDDY, O. CHINNAPPA (J)
CITATION:
1980 AIR 64 1979 SCR (3) 905
1979 SCC (3) 202
CITATOR INFO :
R 1980 SC 367 (13)
F 1990 SC1232 (3)
ACT:
Land Acqusition Act, 1894, Sections 4 and 6-Validity of
Section 6 Notification struck down by the Supreme Court
after 13 years of legal battle intrtaties-Consequent to the
decision second notification under Section 6 issued on 10-
10-1967 after gving fresh notice under Section 5A and
personal hearing of the parties-Whether the second
notification is hit by the postulate that "every statutory
power must be exercised reasonably"-Effect of the Land
Acquisition (AmenJment and Validation) Act 1967 introducing
amendments to Section 4(2) aan proviso to Setion 6.
Legal Representatives to be brought on record-Civil
Procedure Code, 1908-Making an application under Order XXII
Rule 10 instead of under Order XXXI Rule 4 is not correct.
HEADNOTE:
A suit (No. 1262/53) Challenging the notification under
Section 4 of the Land Acquisition Act dated 10-10-1952
issued by the former Government of Bombay and later another
notification under Section 6 of the Act dated 14-8-1953
(issued during the pendency of the suit), notifying that the
final plots Nos. 41. 42 and 43 were required for public
purpose viz. State Transport-was dismissed by the Trial
Court on 28-1-1959. The first and the second appeals having
failed, the respondents came up to this Court. This Court in
its decision inter partes, Valji Bhai’s case struck down
Section 6 notification on the ground that the acquisition
being for the benefit of a Corporation, though for a public
purpose was bad beeause no part of the compensation was to
come out of the public revenue and the provisions of Part
VII of the Act had not been complied with.
After the bifurcation of the erstwhile State of Bombay,
the land acquisition proceedings came within the cognizance
of Gujarat State. The State by its letter dated 22-8-1966
decided to contribute towards compensation a sum of Re. 1/-
which was subsequently raised to Rs. 500/-. The Government
felt that as long time has elapsed since the earlier report
under Section 5A was submitted by the Collector, a fresh
enquiry should be made. Accordingly the Additional Special
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Land Acquisition Officer issued a notice dated 1-8-1966
intimating to the respondents that if they so desired they
might submit their further objections on or before 16-8-
1966. Complying with this notice, the respondents submitted
further objections on 31-8-1966 and they were also given a
personal hearing. After examining the enquiry report
submitted by the enquiry officer the Government of Gujarat
issued a notification under Section 6 on 10-10-1967.
The respondents questioned the validity and legality of
this notification in the writ petition filed by them on 14-
2-1968 on the only ground that it was issued more than 15
years after the date of Section 4 notification. The High
Court was of the opinion that if the power to make a
declaration under Section
906
6 is exercised after an unreasonable delay from the date on
which notification under Section 4 is issued such exercise
of power would be invalid and it accordingly struck down the
notification under Section 6 of the Act. Hence the two
appeals one by the State of Gujarat and the other by the
Gujarat State Road Transport Corporation.
Allowing the appeals by certificate, the Court
^
HELD: 1. The impugned section 6 notification was issued
within the prescribed period introduced by the 1967
Amendment Act and, therefore could not be struck down on the
only ground that the power to issue second section 6
notification was exercised after an unreasonable and
unexplained delay. Section 6 notification, dated 10th
october 1967, therefore is valid and legal.[918G-H, 919A]
2. A combined reading of the provisions contained in
sub-section (2) of Section 4 with the one contained in the
proviso to sub-section (1) of Section 6 introduced by the
Land Acquisition (Amendment and Validation) Act, (Central
Act 13 of 1967) with effect from 20-1-1967 would make it
clear that the Government would be precluded from making a
declaration under section 6 after the expiry of a period of
three years from the date of issue of a notification under
Section 4 which may be issued after the Amendment Act came
into force. And in respect of those section 4 notifications
which were issued prior to the commencement of the Ordinance
i.e. 20-1-1967, any notification which is required to be
issued under section 6 must be made within a period of two
years whereafter as a necessary corollary all s. 4
notifications issued prior to 20th January 1967 would stand
exhausted and would not provide either a source of reservoir
for issuing s. 6 notification. Consequently the mischief
sought to be set at naught by the High Court by reading by
necessary implication in the scheme of ss. 4, 5A, and 6 the
concept of exercise of statutory power within a reasonable
time has been statutorily remedied. The apprehensions of the
High Court that if not checkmated by implying that such
statutory power must be exercised within a reasonable time
to curb arbitrary exercise of power to the detriment of a
citizen have been taken note of by the legislature and fully
met. Absence of any decided case on the subject of which
High Court took note could not permit an inference as has
been done by the High Court that in the absence of a decided
case the legislature would not remedy the possible mischief.
Legislature often does take note of a possible abuse of
power by the executive and proceed to nip it in the bud by
appropriate legislation and that has been done in this case.
There is now no more possibility of a gap of more than three
years from the date on which s. 4 notification is issued,
otherwise it would be invalid as being beyond the prescribed
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period. [916 G-H, 917 A-D]
In the instant case, the notifications under section 4
was prior to the commeneement of the ordinance. Therefore,
the provision contained in sub-section (2) of section 4 of
the 1967 Amendment Act would be directly attracted. The
Government could, therefore, make a declaration within a
period of two years from 20th January 1967. The Government
has in fact issued the impugned notification under section 6
on 10th October 1967 i.e. within the period prescribed by
the Statute. [917 E-F]
907
3.When a period is prescuibed for exercise of power it
manifests the legislative intention that the authority
exercising the power within the prescribed time could not at
least be accused of inaction or dithering and, therefore,
such exercise of power could not be said to be bad or
invalid on the only ground that there was unreasonable delay
in the exercise of the power. The very prescription of time
inheres a belief that the nature and quantum of power and
the manner in which it is to be exercised would consume at
least that much time which the statute prescribes as
reasonable and, therefore, exercise of power within the time
could not be negatived on the only ground of unreasonable
delay. [917H, 918 A-B]
Therefore, in this case, there was no unreasonable
delay in exercise of power and hence the exercise was
neither bad nor invalid. [918B]
4. Once the legislature stepped in and prescribed a
sort of limitation within which power to issue notification
under section 6 could be exercised, it was not necessary to
go in search of a further fetter on the power of the
Government by raising the implication. [918F-G]
In this case, the High Court by implication read a
fetter on the power of the Government to issue s. 6
notification within a reasonable time after the issue of s.
4 notification after observing that there was no express
provision that such power ought to be exercised within a
reasonable time. In raising this impliccation the High Court
took into account the postulate that every statutory power
must be exercised reasonably and a reasonable exercise of
power implies its exercise within a reasonable time. Coupled
with it two other factors were taken into consideration such
as the effect of issuing a s. 4 notification on the rights
and obligations of the owner of the land whose land is
proposed to be acquured; the right of the Government to
unilaterally cancel s. 4 notification in the event of fall
in prices; history of legislation; and delayed issue of s. 6
notification would deny adequate compensation to the owner.
But by the time the High Court examined this matter the
legislature had already introduced a provision by which the
power to issue s. 6 notification was to be exercised within
the prescribed period of time. At that stage there hardly
arose a question of a search of the fetter on the power of
the Government ignoring to some extent the express statutory
provision. [918C-F]
5. In the case of death of a party to a proceeding who
is joined in his capacity as Karta of an undivided Hnndu
family, if the undivided Hindu family continues to be in
existence the succeeding Karta can be substituted for the
deceased Karta of the family and that would be sufficient
compliance with Order XXII Rule 4 of C.P.C. [911D-E]
In the insant case an application made under Order XXII
Rules 10 C.P.C. made after the prescribed period of
limitation and in order to avoid seeking condonation of
delay for setting aside abatement is not correct. [911E]
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[The Court, however, overruled the objection on this
ground since the L.rs. have already been substituted].
JUDGMENT:
CIVIL APPELLATE JURISDICTION: Civil Appeal Nos. 2316/69
and 1598/70.
From the Judgment and order dated 14/17/18th March,
1969 of the Gujarat High Court in S.C.A. No. 729/68.
908
R. H. Dhebar and M. N. Shroff for the Appellants in
C.A. 2316/69.
D. V. Patel, M. V. Goswami and Ambrish Kumar for RR 1-5
in C.A. 2316/69 and RR. 1-4 in C.A. No. 1598/70.
The Judgment of the Court was delivered by
DESAI, J.-These two appeals by certificate under
article 133(1)(c) of the Constitution arise from a judgment
rendered by the Gujarat High Court in Special Civil
Application No. 720/68, being a petition under article 226
of the Constitution challenging the validity of a
notification issued by the Government of Gujarat on 10th
october 1967 under section 6 of the Land Acquisition Act,
1894 (’Act’ for short). Civil Appeal No. 2316/69 is
preferred by the original respondent No. 2 Gujarat State
Transport Corporation, and the cognate Civil Appeal No.
1598/70 is preferred by the State of Gujarat, the first
respondent in the petition. As both the appeals arise from
the same proceedings and raise identical contentions they
were heard together and are being disposed of by this common
judgment.
A notification under s. 4 of the Act was issued by the
former Governent of Bombay on 10th October 1952 notifying
that final plots 41, 42 and 43 were likely to be needed for
a public purpose, viz., State Transport. The respondents
who are tenants of different parcels of land comprised in
the aforementioned final plots objected to the proposed
acquisition. Soon after filing the objections under s. 5A of
the Act the respondents fild Civil Suit No. 1262/53 in the
Court of Civil Judge, Second Division, Ahmedabad, for a
declaration that the notification under s. 4 was illegal and
ultra vires and for an injunction restraining the respondent
State from proceeding with the acquisition of the lands in
possession of the respondents. During the pendency of this
suit the then Government of Bombay, after considering the
report submitted under s. 5A, made a declaration under s. 6
as per the notification dated 14th August 1953 declaring,
inter alia, that final plots 41, 42 and 43 were required for
the purpose of State Transport. The respondents amended
their plaint adding a relief for quashing the notification
under s. 6. The suit filed by the petitioners was dismissed
by the trial court and first and second appeals did not meet
with success. They carried the matter to this Court and
succeeded as per judgment reported in Valjibhai Muljibhai
Soneji & Anr. v. The State of Bombay (now Gujarat) &
Ors.(1). As per that judgment this Court decreed the
plaintiff’s suit which would imply that this Court quashed
both notifications under ss. 4 and 6. Reading the judgment
as a whole it
909
appears that the validity of s. 4 notification was upheld
and only the notification under s. 6 was struck down. In the
mean timn on the bifurcation of the erstwhile State of
Bombay these land acquisition proceedings came within the
cognizance of Government of Gujarat and when the State
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Government became aware some where in 1965 about the error
in the decree, Review Applications Nos. 11 and 12 of 1965
were made for correcting the decree. This Court granted the
applications and modified the decree on 13th September 1965.
The Government taking its clue from the judgment of
this Court which invalidated s. 6 notification on the ground
that the acquisition having been made for the benefit of a
Corporation, though for public purpose, is bad because no
part of the compensation is to come out of the public
revenue and provisions of Part VII of the Land Acquisition
Act have not been complied with, decided as per its letter
dated 22nd August 1966 to contribute Re. 1/-, which was
subsequently raised to Rs. 500/- towards payment of
compensation. The Government, however, felt that as long
time has elapsed since the earlier report under s. 5A was
submitted by the Collector, a fresh enquiry should be made
Accordingly the Additional Special Land Acquisition Officer
issued a notice dated 1st August 1966 intimating to the
respondents that if they so desired the may submit their
further objections by or before 16th August 1966. Complying
with this notice the respondents submitted further
objections on 31st August 1966 and they were also given a
personal hearing. After examining the report submitted by
the enquiry officer the Government of Gujarat issued a
notification under s. 6 on 10th October, 1967. The
respondents questioned the validity and legality of this
notification in the petition filed by them on 14th February,
1968.
Respondents questioned the validity of the impugned s.
6 notification on the only ground that it was issued more
than 15 years after the date of s. 4 notification and thus
it had been issued after an unreasonable delay and it was
illegal and void. While this was the only contention which
found favour with the High Court, in reaching this
conclusion the High Court, after taking note of the fact
that there was no express provision in the Act requiring
that the notification under s. 6 must be issued within a
reasonable time after issue of s. 4 notification, primarily
relied upon the postulate that every statutory power must be
exercised reasonably, a doctrine too finally entrenched in
our jurisprudence to brook any refutation which would assist
in raising the implication that s. 6 notification must
follow within a reasonable time
910
after issue of s. 4 notification. The Court also drew
support from the scheme of ss. 4, 5A and 6 as well as the
history of the legislation. On behalf of the appellants it
was pointed out to the High Court that in view of the
provisions contained in sub-s. (2) of s. 4 of the Land
Acquisition (Amendment and Validation) Act, 1967 (’Amendment
Act’ for short), as well as the proviso to s. 6(1) also
introduced by the same amendment Act the situation as has
arisen in this case is not likely to arise and the
apprehended mischief is not likely to be committed in future
and, therefore, the Court should not go in search of the
fetters on the power of the Government to issue s. 6
notification, in the absence of any express provision, by
implication that statutory power must be exercised within a
reasonable time. It was further submitted on their behalf
that once the legislature has clearly permitted a thing to
be done within the time specified in the statute it would be
impermissible by a process of interpretation to reduce the
statutory period by implying a further fetter on the power
of the Government and that would be the effect if the
contention on behalf of the respondents was accepted. In
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other words, as the legislature has now provided that in
respect of a notification issued under s. 4 before the
commencement of the Land Acquisition (Amendment and
Validation) Ordinance, 1967, no declaration under s. 6 shall
be made after the expiry of two years from the commencement
of the aforesaid Ordinance, and futher that in case of
section 4 notification issued after the commencement of the
Ordinance a statutory limit of three years is fixed within
which declaration under s. 6 can be made, the apprehended
arbitrary exercise of power is thwarted and the Court should
not further restrict or curtail the power of the Government
to issue notification under s. 6 within the time prescribed
by the statute.
The High Court was of the opinion that if the power to
make a declaration under s. 6 is exercised after an
unreasonable delay from the date on which notification under
s. 4 is issued such exercies of power would be invalid and
accordingly struck down the notificatio under s. 6. Hence
these two appeals.
A preliminary objection was raised by the learined
counsel for the respondents in both the appeals contending
that as the appellants in both the appels failed to seek
within the prescribed time substitution of the heirs and
legal representatives of respondent 5 who died on 8th March,
1970 during the pendency of the appeal in this Court, in the
circumstances of the case these appeals would abate as a
whole. Undoubtedly, respondent 5 who is described in the
cause title of the Memos. of Appeals as "Ramesh Ramjibhai,
Manager, Ramesh Restaurant, a joint hindu family business",
died on 8th March 1970. what
911
appears to have happened thereafter is that applications
were made by the appellants under Order 22, Rule 10, Code of
Civil Procedure, for bringing Shri Krishnakant Ramjibhai,
Manager of Ramesh Restaurant, a joint hindu family business,
on record in place of deceased respondent 5. According to
the appellants the deceased respondent 5 had filed the
original petition in his capacity as manager of joint hindu
family business and on his death as the interest devolved
upon the succeeding manager of the joint hindu family
business, applications under order 22, rule 10, C.P.C. were
made to bring the person on record on whom the interest
devolved pending the appeal. Mr. D. V. Patel took serious
exception to the procedure adopted by the appellants and
there is some merit in this criticism. In fact, when Ramesh
Ramjibhai who filed the initial petition in his capacity as
karta of the undivided hindu family business died during the
pendency of the appeal, proper applications should have been
made by the appeal, proper applications should have been
made by the appellants under O. 22, r. 4, to substitute
heirs of Ramesh Ramjibhai who was respondent 5 in the
appeals before this Court. In case of death of a party to a
proceeding who is joined in his capacity as karta of an
undivided hindu family, if the undivided hindu family
continues to be in existence the succeeding karta can be
substituted for the deceased karta of the family and that
would be sufficient compliance with Order 22, r. 4. What
appears to have been done is to make applications under O.
22, r. 10 and those applications appear to have been granted
subject to just exceptions. The applications appear to have
been made after the prescribed period of limitation, and in
order to avoid seeking condonation of delay for setting
aside abatement, O 22, r. 10 appears to have been invoked.
Mr. Patel is right in saying that this was a device but in
any event if proper applications were made under O. 22. r. 4
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the gentleman who became the karta of the undivided hindu
family after the death of the former karta could have been
substituted on record for the deceased respondent 5. In any
event, succeeding karta of the undivided hindu family having
been brought on record though not strictly in accordance
with law, we do not propese to give any importance to this
technical objection and overrule the same.
In a decision inter partes, Valjibhai’s case, (supra)
this Court struck down the first section 6 notification
issued on 14th August 1953 on the ground that the
acquisition being for the benefit of a Corporation, though
for a public purpose, was bad because no part of the
compensation was to come out of the public revenue and the
provisions of Part VII of the Act had not been complied
with. It would appear that s. 4 notification was issued on
10th October 1952 and within less than one year, after
completing the enquiry under s. 5A and the
912
examination of the report by the appropriate Government, s.
6 notification was issued on 4th August 1953. By any yard-
stick it could not have been said that there was delay, much
less an unreasonable delay, in making the necessary
declaration under s. 6 after the issue of the notification
under s. 4. The chronology of events that followed in the
wake of issuance of a notification under s. 6 dated 14th
August 1953 would wholly exonerate the Government of any
charge of dithering or dilatoriness or inaction. These
events be noticed now so as to appreciate the submission on
behalf of the appellants that they cannot be accused of any
inaction, deliberate dilatoriness or dithering.
Soon after the issue of the notification under s. 4
dated 10th October 1952 and even before the declaration was
made under s. 6 as per notification dated 14th August 1953
the respondents filed Civil Suit No. 1262/53 challenging the
notification under s. 4 and sought an injunction restraining
the then State of Bombay from proceeding with the
acquisition of the lands in possession of the respondents.
An interim injunction was sought but the same was refused.
Thereafter came the notification under s. 6 dated 14th
August 1953. It appears that thereafter the respondents
amended the plaint to add a relief for quashing and setting
aside the notification under s. 6 also. It would thus appear
that whatever was required to be done by the Government for
completing the proceedings of acquisition was undertaken and
finished within a period of less than one year from the date
of the notification under s. 4. The suit filed by the
respondents was dismissed by the trial court as per its
judgment dated 28th January 1959. Both the notifications
were held valid and they were not found to suffer from any
infirmity as contended for and on behalf of the respondents.
The respondents carried the matter in appeal to the District
Court and this appeal was dismissed by the first appellate
court as per its judgment dated 28th September 1959. The
respondents preferred second appeal to the High Court but
failed to carry conviction with the High Court, with the
result that the appeal failed and was dismissed on 1st
August 1960. The respondents did not rest content with the
dismissal of their second appeal and applied for and
obtained special leave of this Court under article 136 of
the Constitution. The appeal of the respondents by special
leave succeeded as per judgment rendered by this Court on
8th May 1963.
The question is whether there was any delay much less
unreasonable delay on the part of the State Government in
taking follow up action after issuing notification under s.
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4. The State Government had actually taken the follow up
action expeditiously within less than a year when on 14th
August 1953, s. 6 notification was issued. Even
913
before s. 6 notification was issued the respondents filed
the suit and went on preferring appeals. They succeeded for
the first time in this when this Court allowed their appeals
on May 8, 1963. Till then the Government could not be
accused of any inaction or delay in taking the follow up
action. What was the Government expected to do during the
time the respondents went on preferring successive appeals ?
Was the Government expected, even though it succeeded in the
trial court and first and second appellate courts to foresee
in advance that at some stage by some court in the pyramid
of appeals its notification under s. 6 would be found to be
ineffective and forestall such a decision by issuing another
s. 6 notification ex major cautela ? If the Government
succeeded in three courts and was assured by three courts
that both its notifications under ss. 4 and 6 were valid and
effective, it is difficult to appreciate the observation of
the High Court that when the Government issued the first s.
6 notification it was ineffective exercise of power under s.
6 and the Government wrongly went on contending that it was
a valid exercise of power. This criticism is not well
merited. There would have been some legitimacy in this
criticism of the stand of the Government if the Government
had lost in the first court and went on filing successive
appeals even if each court went on holding the notification
ineffective. The reverse is the position. The Government
went on succeeding and the courts went on upholding the
notification. There was no alternative with the Government
but to go on defending its action before the courts to which
it was dragged by the respondents after their successive
failures. In this background the question was posed by the
High Court: Can the Government then contend, when it is
found to be wrong by the highest court in the land, that the
delay in the exercise of the power under s. 6 occasioned by
its own wrong stand should be regarded as reasonable ? and
answered by it by saying that if the Government had not
persisted in wrongly asserting the validity of the first s.
6 notification and accepting its invalidity, had cancelled
it, the delay in the effective exercise of the power under
s. 6 could have been avoided. This answer is unfortunately
not borne out by the events succeeding the issuance of the
first s. 6 notification. Not only the Government stand was
not found to be wrong but by three courts it was found to be
correct. It is this Court in the last appeal found s. 6
notification invalid. Could the Government be expected to
speculate in advance that ultimately it may fail to convince
this Court though it had convinced three other courts and,
therefore, right at the time of institution of the suit in
the court, concede the contention of the respondents and
cancel the first s. 6 notification and issue a second one ?
There was no guarantee that the second one would not have
been challenged and obviously there was
914
no assurance that some defect may not be found by some court
even in the second s. 6 notification. The Government cannot
be put on the horns of a dilemma. Therefore, we find it
difficult to agree with the High Court that having adopted a
wrong stand and thus taken about 11 years the Government
cannot now be permitted to urge that the delay so occasioned
should not be regarded as unreasonable. In fact the
Government had practically little or no option but to
support the decisions of the Courts which were in its favour
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till this Court for the first time found some defect in its
notification under s. 6. Any other view may lead to a
starting result that every litigant before it can explain
the delay on the ground of being led from court to court
must foresee a possible error that the hierarchy of courts
may at some stage notice and rectify its stand in advance.
It would be nothing short of a speculative approach which
may ill-suit any litigant and more so the Government.
The High Court was further of the opinion that even if
there was some explanation for the delay from 14th August
1953 to 8th May 1963, there was no explanation for the delay
in making the review application in the beginning of 1965
before the Supreme Court and that this period of one year
and 9 months remains totally unexplained. In this context it
may be advantageous to state that the respondents in the
earlier round of litigation had challenged both the
notifications under ss. 4 and 6 had lost before the first
three courts. This Court while allowing the appeal by its
judgment dated 8th May 1963 passed the final order as under:
"We, therefore, allow the appeals and decree the
suits of the appellants with costs in all the Courts."
Literally implemented, the decretal portion would mean
that both s. 4 and s. 6 notifications were struck down.
Reading the body of the judgment it clearly transpires that
this Court upheld the validity of the notification under s.
4. When this inconsistency between the judgment and the
decree came to the notice of the Government, Review
Petitions Nos. 11 and 12 of 1965 appear to have been filed
in the year 1965, and these petitions were allowed by this
Court as per its order dated 13th September 1965 by deleting
the decretal portion of the judgment as extracted
hereinabove and substituting it in the following words:
"and decree the suit for permanent injunction
restraining the respondents from proceeding further with the
land acquisition proceedings under the said notification
issued under s. 6(1) of the Act with costs in all the
courts".
915
The High Court was of the opinion that the Government
took a long time of one year and 9 months in ascertaining
this inconsistency between the decretal portion of the
judgment and the main body of the judgment and there was
delay in moving the review applications. In this connection
a reference to the affidavit of Mr. D. K. Motwani, Secretary
to the Gujarat State Road Transport Corporation for whose
benefit the acquisition was made, as well as the affidavit
of Shri S. R. Pardhan, Under Secretary to Government of
Gujarat, would show that after the copy of the judgment was
received and it was examined to ascertain what further steps
were required to be taken to complete the process of
acquisition consistent with the judgment of the Supreme
Court, the error was discovered and then the learned
advocate was instructed to file review applications. This
delay of a year and few months in the context of the facts
in this case cannot be said to be unreasonable.
The third stage where the High Court found the delay in
taking the follow up action was after the grant of review
application and before the impugned notification dated 10th
October 1967 was issued. This Court allowed the review
applications on 13th September 1965. Thereafter the
Government directed a fresh enquiry under s. 5A. This was
done in fairness to the respondents, though Mr. D. V. Patel
learned counsel for the respondents was rather critical of
this fairness of the Government inasmuch as he said that
there was no necessity for a fresh enquiry. Earlier enquiry
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under s. 5A was in 1952. By this time nearly 15 years had
elapsed since the enquiry. If the Government in the backdrop
of these facts considered it fair and just to order a fresh
enquiry to give the respondents an opportunity to file fresh
objections, the Government cannot be accused of dithering or
whiling away precious time on what was described as a futile
exercise. This second enquiry under s. 5A was held after
giving an opportunity as per notice dated August 1966, to
file objections which in fact were filed on August 31, 1966,
and then a notice dated 30th December 1966 was served upon
the respondents calling upon them to appear for personal
hearing on 12th January 1967. The enquiry was adjourned at
the request of the respondents 9 times as set out in the
affidavit of Shri S. R. Pardhan. The enquiry was over on
13th April 1967. During the course of personal hearing the
respondents appeared through their advocates Sarvashri K. M.
Vyas, A. L. Shah, V. R. Bhatt and N. D. Pandey. The last of
the submissions appear to have been made on 13th April 1967.
Thereafter the enquiry officer submitted his report and the
Government took the prompt action of issuing the impugned
notification on 10th October 1967. Even here the High Court
found a further unexplained delay after 13th September 1965
till 10th October
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1967 when the impugned notification was issued. The High
Court possibly overlooked the affidavit of Shri S. R.
Pradhan when it observed that there was no satisfactory
answer to the question posed by it, in the affidavit filed
on behalf of the respondents. With respect, it is not
possible to subscribe to this view of the High Court in view
of the facts clearly set out hereinabove. It, therefore,
unmistakably transpires that in the facts and circumstances
of this case there was no delay, though apparently there
appears a time lag of nearly 15 years between s. 4 and s. 6
notifications because the events in the interregnum clearly
made it impossible for the Government to issue a second s. 6
notification when it had already issued a first s. 6
notification within a period of less than one year from the
date of the issue of the s. 4 notification and the validity
of which was beyond reproach till May 6, 1963.
Assuming that the High Court was right in rejecting the
explanation preferred by the Government for the delay in
issuing the second s. 6 notification, would it still be fair
to hold that there was an unreasonable delay in issuing the
second s. 6 notification in view of the specific provision
contained in sub-s. (2) of s. 4 of the 1967 Amendment Act
which provides that notwithstanding anything contained in
clause (b) of sub-s. (1), no declaration under s. 6 of the
principal Act in respect of any land which has been notified
before the commencement of the Land Acquisition (Amendment &
Validation) Ordinance, 1967, under sub-s. (1) of s. 4 of the
principal Act, shall be made after the expiry of two years
from the commencement of the Ordinance. The Ordinance came
into force on 20th January 1967. Simultaneously a proviso
was added to sub-s. (1) of s. 6 in the following terms:
"Provided that no declaration in respect of any
particular land covered by a notification under s. 4 sub-s.
(1) published after the commencement of the Land Acquisition
(Amendment & Validation) Ordinance, 1967, shall be made
after the expiry of three years from the date of such
publication".
A combined reading of the provisions contained in sub-s. (2)
of s. 4 with the one contained in the proviso to sub-s. (1)
of s. 6 introduced by the Amendment Act would clearly put an
end to the unsatisfactory situation which troubled the High
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Court in this case. In view of the statutory provision
noticed herein the Government would be precluded from making
a declaration under s. 6 after the expiry of a period of
three years from the date of the issue of a notification
under s. 4 which may be issued after the Amendment Act came
into force. And in respect of those s. 4 notifications which
were issued perior to the
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commencement of the Ordinance hereinabove noted on 20th
January 1967 any notification which is required to be issued
under s. 6 must be made within a period of two years
whereafter as a necessary corollary all s. 4 notifications
issued prior to 20th January 1967 would stand exhausted and
would not provide either a source or reservoir for issuing
s. 6 notification. Consequently the mischief sought to be
set at naught by the High Court by reading by necessary
implication in the scheme of ss. 4, 5A and 6 the concept of
exercise of statutory power within a reasonable time has
been statutorily remedied. The apprehensions of the High
Court that if not checkmated by implying that such statutory
power must be exercised within a reasonable time to curb
arbitrary exercise of power to the detriment of a citizen
have been taken note of by the legislature and fully met.
Absence of any decided case on the subject of which High
Court took note could not permit an inference as has been
done by the High Court that in the absence of a decided case
the legislature would not remedy the possible mischief.
Legislature often does take note of a possible abuse of
power by the executive and proceed to nip it in the bud by
appropriate legislation and that has been done in this case.
There is now no more possibility of a gap of more than three
years between s. 4 and s. 6 notifications because any
declaration made after the expiry of a period of three years
from the date on which s. 4 notification is issued would be
invalid as being beyond the prescribed period.
These newly inserted provisions were brought to the
notice of the High Court. Now, as pointed out earlier, the
Ordinance came into force on 20th January 1967. The
notification under s. 4 in this case was prior to the
commencement of the Ordinance. Therefore, the provision
contained in sub-s. (2) s. 4 of the 1967 Amendment Act would
be directly attracted. The Government could, therefore make
a declaration within a period of two years from 20th January
1967. The Government has in fact issued the impugned
notification under s. 6 on 10th October 1967, i.e. within
the period prescribed by the statute.
The question then is: when a statute confers power and
prescribes time within which it can be exercised, could it
ever be said that even though the power is exercised within
the statutory period yet the Court can examine the question
of delay and record a finding that there was an unreasonable
delay in exercise of the power and, therefore, the exercise
of power is bad ? This approach would defeat the very
purpose for prescribing a sort of a period of limitation on
exercise of power. When a period is prescribed for exercise
of power it manifests the legislative intention that the
authority exercising the power
918
within the prescribed time could not at least be accused of
inaction or dithering and, therefore, such exercise of power
could not be said to be bad or invalid on the only ground
that there was unreasonable delay in the exercise of the
power. The very prescription of time in heres a belief that
the nature and quantum of power and the manner in which it
is to be exercised would consume at least that much time
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which the statute prescribes as reasonable and, therefore,
exercise of power within that time could not be negatived on
the only ground of unreasonable delay. Therefore, in this
case it is difficult to agree with the High Court that there
was an unreasonable delay in exercise of power and hence the
exercise was either bad or invalid.
The High Court by implication read a fetter on the
power of the Government to issue s. 6 notification within a
reasonable time after the issue of s. 4 notification after
observing that there was no express provision that such
power ought to be exercised within a reasonable time. In
raising this implication the High Court took into account
the postulate that every statutory power must be exercised
reasonably and a reasonable exercise of power implies its
exercise within a reasonable time. Coupled with it two other
factors were taken into consideration such as the effect of
issuing a s. 4 notification on the rights and obligations of
the owner of the land whose land is proposed to be acquired;
the right of the Government to unilaterally cancel s. 4
notification in the event of falling prices; history of
legislation; and delayed issue of s. 6 notification would
deny adequate compensation to the owner. But by the time the
High Court examined this matter the legislature had already
introduced a provision by which the power to issue s. 6
notification was to be exercised within the prescribed
period of time. At that stage there hardly arose a question
of a search of the fetter on the power of the Government
ignoring to some extent the express statutory provision.
Therefore, while appreciating the anxiety of the High Court
we are of the opinion that once the legislature stepped in
and prescribed a sort of period of limitation within which
power to issue notification under s. 6 could be exercised it
was not necessary to go in search of a further fetter on the
power of the Government by raising the implication.
It thus appears to be satisfactorily established that
the impugned s. 6 notification was issued within the
prescribed period introduced by the 1967 Amendment Act and,
therefore, could not be struck down on the only ground that
the power to issue second s. 6 notification was exercised
after an unreasonable and unexplained delay. This being the
only infirmity found by the High Court to which we are not
able to
919
subscribe, it must be held that the second s. 6 notification
dated 10th October 1967 is valid and legal.
Accordingly both these appeals succeed and are allowed
and the decision of the High Court is set aside and Special
Civil Application No. 729/68 filed by the respondents is
dismissed but in the circumstances of the case, with no
order as to costs.
S.R. Appeals allowed.
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