Full Judgment Text
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PETITIONER:
AMBALAL PURSHOTTAM ETC.
Vs.
RESPONDENT:
AHMEDABAD MUNICIPAL CORPORATION & ORS.
DATE OF JUDGMENT:
19/02/1968
BENCH:
SHAH, J.C.
BENCH:
SHAH, J.C.
RAMASWAMI, V.
MITTER, G.K.
CITATION:
1968 AIR 1223 1968 SCR (3) 207
ACT:
Land Acquisition Act-Structures made after s. 4 notice, on
undertaking by owners not to claim compensation-Tenants, if
can challenge Acquisition for Municipality, if any
restrictions.
Bombay Municipal Boroughs Act, 1925 (Bom. Act 18 of 1925)
Ss. 52, 114-Powers of Municipality to acquire-Whether
attempt to purchase by private treaty prerequisite.
HEADNOTE:
For widening a street, the respondent-municipality requested
the State Government to acquire the lands within the "line
of the street" prescribed by the Municipality. After the
State Government issued notification under s. 4 of the Land
Acquisition Act, the owners of the lands put up temporary
structures upon the lands with the permission of the
Municipality on giving an undertaking that they would not
claim compensation for those structures in the land
acquisition proceedings. The structures were let out to the
appellants. Notifications were issued under s. 6 and
compensation payable determined. When attempts were made to
take possession of the land acquired, the tenants-
appellants, moved writ petitions in the High Court The High
Court rejected the petitions. Dismissing the appeals, this
Court,
HELD : By the compulsory acquisition for a public purpose,
subject to payment of compensation, no fundamental rights
guaranteed under Arts. 19 and 31(2) of the Constitution were
infringed. The lands were properly notified for
acquisition. The compensation payable in respect of the
lands was determined. If there was any grievance which the
appellants were entitled to raise in respect of the
compensation determined as payable, their remedy lay in
approaching the Courts competent to determine that quest-
ion. [210 D-E]
For the purpose of widening the street, the Municipality had
the power Linder s. 114 of the Bombay Municipal Boroughs Act
1925 to purchase land and under s. 52 of the Act the
Municipality could request the local Government to take
action for compulsory acquisition of the land and for
vesting the same in the Municipality. The power of the
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appropriate Government under s. 4 of the Land Acquisition
Act to notify land needed or likely to be needed for a
public purpose is not ’subject to the restriction, that when
the public purpose is of a municipality the municipality has
attempted to purchase the land by private treaty and has
failed in that attempt. [211 G, 212 B-C]
The appellants as lessees of the structures had no right in
the land on which the structures stood. The structures
belonged to the owners of the land. and were allowed to be
put up after the date of the notification under s. 4 of the
Land Acquisition Act was issued on the undertaking that no,
compensation shall be claimed ’in respect of the structures.
The appellants were not on the lands at the date, of the
notification under s. 4, and being tenants of the structures
they acquired, prima facie, no interest in the lands. Even
assuming that they had acquired, by virtue of their res-
pective tenancies, an interest in the lands, their remedy
was to approach
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the Land Acquisition Authorities for claiming apportionment
of compensation. L212 G. HI
JUDGMENT:
CIVIL APPELLATE JURISDICTION : Civil Appeal No. 1369 to 1407
and 1564 to 1578 of 1967.
Appeals by Certificates/Special leave from the judgment and
order dated February 1966 of the Gujarat High Court, in
Special Civil Application Nos. 912, 916, 918, 920, 922, 923,
925, 929, 930, 931, 938 and 941 of 1964, and 917, 926, 927,
928, 932, 933, 934, 921, 935, 942, 924, 939 and 940 of 1964
respectively.
Vithalbhai Patel and S. S. Shukla, for the appellants (in
all the appeals).
I. N. Shroff, for respondent No. 1 (in C.As. Nos. 1396 to
1407 of 1967).
Purshottam Trikamdas and 1. N. Shroff, for respondent No. 1
(in C.As. Nos. 1564 to 1578 of 1967).
R. H. Dhebar, S. K. Dholakia and S. P. Nayyar, for respon
-dents Nos. 2 and 3 in all the appeals).
The Judgment of the Court was delivered by
Shah, J On June 6, 1941, the Municipal Borough of Ahmedabad
prescribed a "line of the street" along an important
thoroughfare in the town of Ahmedabad and resolved that
steps be taken for compulsory acquisition of lands falling,
"within the line." On June 9, 1941 a notification was issued
by the Government of Bombay under S. 4 of the Land
Acquisition Act, 1894, that the lands set out in the
Schedule "were likely to be needed for the public purpose
set out in column 6 of the Schedule thereto, viz., for road
widening", and that "any contracts for the disposal of any
of the said lands by sale, lease, mortgage, assignment,
exchange or otherwise, or any outlay or improvements made
therein without the sanction of the Collector....... after
the date of this notification will, under section 24
(seventhly) of the said Act, be disregarded by the officer
assessing compensation for such parts of the said lands as
may be finally acquired." The government of Bombay issued a
notification under S. 6 of the Land Acquisition Act sometime
in 1943, and also appointed the Special Land Acquisition
Officer to take order for acquisition of the lands.
After the publication of the notification under S. 4 of the
Land Acquisition Act, structures on the lands notified were
burnt down by rioters. The owners of the lands put up
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temporary structures upon the lands with the permission of
the Municipal Borough giving an undertaking that they will
not claim compensation for
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these structures in the land acquisition proceedings. The
structures were let out to different tenants.
Proceedings for assessment of compensation were not imme-
diately taken in hand, but negotiations were started by the
Municipal Borough with the owners of the lands, and between
the years 1944 and 1952 some lands were purchased by the
Municipal Borough by private treaty and the lands so
purchased were withdrawn from the notification for
acquisition. Finding that it was not possible to persuade
the other owners to sell their lands, the Special Land
Acquisition Officer was moved to make his award. The
Special Land Acquisition Officer made a common award on
August 13, 1960. When the Special Land Acquisition Officer
attempted to take possession of the lands acquired, the
tenants of the structures moved petitions under Art. 226 of
the Constitution in the High Court of Gujarat for writs
quashing or setting aside the notifications under ss. 4 and
6 of the Land Acquisition Act, and the awards and the
notices issued for obtaining possession from the
petitioners.
The High Court rejected the petitions. Against the orders
rejecting the petitions, these appeals have been filed with
special leave.
In these appeals counsel for the appellants contended that-
(1) the notification issued by the Government of Bombay, the
award made by the Special Land Acquisition Officer, and the
proceedings subsequent to the award were invalid as
infringing Arts. 19 and 31(2) of the Constitution in that
the appellants were deprived of their right to property
otherwise than in accordance with law; (2) that the
conditions precedent to the exercise of the power to acquire
the lands under the Land Acquisition Act being absent, all
the proceedings including the notification under s. 4 of the
Land Acquisition Act were invalid; (3) that the rights of
the appellants in the structures occupied by them as tenants
were not affected by the award as no notices were served
upon them by the Special Land Acquisition Officer under s.
9(3) of the Land Acquisition Act, and they could not be
deprived of their right in the structures; and (4) that the
notifications under Jr Ss. 4 & 6 of the Land Acquisition Act
were without jurisdiction because there was "no possible
need" of the lands by the Municipal Corporation, and the
proceedings were commenced not for the purpose for which
they may under the law be commenced. but for a collateral
purpose, viz., to acquire the land in future at rates pegged
down to the date on which the notification under s. 4 was
issued.
In our judgment there is no substance in any of the conten-
tions raised. It may be recalled that the appellants in
these
210
appeals are not the owners of the lands acquired : they are
tenants in occupation of structures permitted to be
constructed upon the lands after the date of the
notification under s. 4 of the Land Acquisition Act, on
condition that the owners of the lands will not claim
compensation for those structures. If the land owners are
not entitled to claim compensation for the structures,
evidently the persons who occupy those structures and who
have come to occupy the same after the notification, have,
no interest in the lands or the compensation and they cannot
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hold up the acquisition proceedings by preventing the
Special Land Acquisition Officer from taking over possession
of the lands.
The Land Acquisition Act authorises the appropriate
Government to notify land for acquisition which is or is
likely to be needed for a public purpose : and road widening
in a town is undoubtedly a public purpose. After
considering the report of the Collector under s. 5-A of the
Land Acquisition Act, the Government of Bombay published a
notification under s. 6(1) of the Land Acquisition Act that
the lands were needed for a public purpose. That
declaration was, by virtue of s. 6(3) of the Act, conclusive
evidence that the lands were needed for a public purpose.
By the compulsory acquisition for a public purpose, subject
to payment of compensation, no fundamental rights guaranteed
under Arts. 19 & 31(2) of the Constitution were infringed.
The lands were properly notified for acquisition. The
compensation payable in respect of the lands has been
determined. If there is any grievance which the appellants
are entitled to raise in respect of the compensation
determined as payable, their remedy lies in approaching the
courts competent to determine that question. The plea of
infringement of fundamental rights of the appellants is
wholly unsubstantial and was rightly not raised before the
High Court in the writ petitions out of which these appeals
arise.
In considering the second contention that the conditions
precedent to the exercise of the power, to acquire lands
have not been fulfilled, it is necessary first to refer to
certain provisions of the Bombay Municipal Boroughs Act 18
of 1925.
S.52 "When there is any, hindrance to the
permanent or temporary acquisition by a
municipality upon payment of any land or
building required for the purposes of this
Act, the Provincial Government may, after
obtaining possession of the same for itself
under the Land Acquisition Act, 1894, or,
other existing law, vest such land or building
in the municipality on its paying the
compensation awarded, and on its repaying to
the Provincial Government all costs incurred
by the Provincial Government on account of the
acquisition."
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Section 63 of the Bombay Municipal Boroughs Act by the first
sub-section authorises the Municipal Borough to acquire and
hold property both movable and immovable; whether within or
without its limits. Section 118 authorises the Chief
Officer of the municipality, subject to the approval of the,
municipality, to prescribe a line on each side of every
public street within the municipal borough and from time to
time to prescribe a fresh line in substitution of any line
so prescribed or for any part thereof. By cl. (a) of sub-s.
(3) of s. 118, except under the, provisions of s. 143 no
person shall construct or reconstruct any portion of any
building within the regular line of the public street
without the permission of the Chief Officer under s. 123.
Clause (b) of sub-s. (3) of s. 118 provides that when the
Chief Officer refuses permission to construct or reconstruct
any building in any area within the regular line of the
public street, such area shall with the approval of the
municipality be added to the street and shall thenceforth be
deemed part of the public street and shall be vested in the
municipality. Clause (c) of sub-s. (3) of s. 118 provides
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that the amount of compensation shall be determined in the
mariner provided by s. 198 which shall be paid by the muni-
cipality to the owner of any land added to a street under
cl. (b) of sub-s. (3). Section 114(1) of the Act provides
that it shall be lawful for a municipality to lay out and
make new public streets to construct tunnels and other works
subsidiary to public streets; to widen, open, enlarge or
otherwise improve, and,to turn, divert, discontinue or stop
up any public street.
On a review of these provisions it is clear that the
municipality under the Bombay Municipal Boroughs Act, 1925,
had the power to acquire land needed for municipal purposes
including widening, opening, enlarging or otherwise
improving any public street or municipal road. The
municipality laid down a line of the street: after the line
of the street was laid down, it was open to the municipality
to decline permission to construct or reconstruct any
building on the land and the lands were to be deemed added
to the street. But the municipality did permit construction
on the lands. The provisions of cl. (b) of s. 118(3) were
therefore not attracted. For the purpose of widening the
street, the municipality had the power under s. 114 to
purchase the land, and under s. 52 the municipality could
request the local Government to take action for compulsory
acquisition of the land and for vesting the same in the
municipality. Counsel for the appellants urged that the
power conferred upon the municipality could only be,
exercised when there was any "hindrance to the permanent or
temporary acquisition" by the municipality of any land
required for the purposes of the Act, and since there is no
proof of such hindrance, all the proceedings for acquisition
must be deemed void. In our judgment, the argument is
misconceived. Section
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52 of the Bombay Municipal Boroughs Act, 1925, authorises
the municipality to purchase property required for the
purpose of the Act by private treaty or to approach the
Government for compulsory acquisition of the land for a
public purpose. Section 52 merely sets out alternative
modes of acquiring property : it does not provide that
before a Municipal Borough may move the Government to
acquire land under the Land Acquisition Act, the Borough
should have made attempts to purchase the.land by private
treaty and have failed in that attempt. In any case, the
power of the appropriate Government under s. 4 of the Land
Acquisition Act to notify land needed or likely to be needed
for a public purpose is not subject to the restriction that
when the public purpose is of the municipality, the
municipality has attempted to purchase the land by private
treaty and has failed in that attempt. The scheme of the
Land Acquisition Act is that whenever the land is needed for
a public purpose or is likely to be needed for a public
purpose, the Government may resort to the machinery provided
under the Act for acquiring the land. Where the public
purpose is the purpose of a local authority and the
provisions of the Land Acquisition Act are put in force for
acquiring land at the cost of any fund controlled or managed
by a local authority, s. 50 of the Land Acquisition Act
provides that the charges of and incidental to such
acquisition shall be defrayed from such fund. There is no
other bar statutory or otherwise to the acquisition of the
land for purposes of a municipality. In issuing the
notification under s. 4 of the Land Acquisition Act, the
appropriate Government is therefore not prevented, merely
because the municipality has not attempted to acquire the
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land by private treaty. There was, therefore, no condition
precedent to the acquisition of the land before a
notification under s. 4 of the Land Acquisition Act was
issued which was not complied with.
The contention that the proceeding for making of his award
by the Special Land Acquisition Officer was invalid has also
no substance. The appellants as lessees of the structures
had no fight in the land on which the structures stood. The
structures belonged to the owners of the land, and were
allowed to be Put up after the date of the notification
under s. 4 of the Land Acquisition Act was issued, on the
undertaking that no compensation shall be claimed in respect
of the structures. The appellants were not on the lands at
the date of the notification under s. 4, and being tenants
of the structures they acquired, prima facie, no interest in
the lands. Even assuming that they had acquired, by virtue
of their respective tenancies, any interest in the lands,
their remedy was to approach the Land Acquisition
authorities for claiming apportionment of compensation. It
may be pointed out
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hat this contention was not raised, before the High Court
and has been raised for the first time in this Court.
The last argument raised by counsel for the appellants is,
in our judgment futile. The notification issued by the
Government of Bombay under s. 6 of the Land Acquisition Act
was by operation of sub-s. (3) conclusive evidence that the
land was needed for a public purpose. No inquiry was
thereafter permissible that the land was not needed for a
public purpose. It is true that no steps were immediately
taken by the Land Acquisition Officer authorities to make
awards of compensation and to take possession of the lands.
But the reason apparently was that the municipality was.
still trying to purchase the land by private treaty and when
it was found that it could not purchase the lands, the Land
Acquisition Officer was requested to expedite the
determination of compensation. We are unable to hold that
there is any evidence that the Government of Bombay issued
the notification under s. 4 of the Land Acquisition Act, not
for the bona fide purpose of acquisition, but with the
object of pegging down prices so that the lands may when
needed be obtained at those rates in future. The land was
within the line of the street and could not without the
sanction of the municipality be put to any profitable use.
If either the land owners or the tenants were aggrieved by
the delay, it was open to them to claim writs or orders
compelling the State Government to complete the assessment
and payment of compensation. We are not hereby to be
understood as suggesting that after issue of’ the
notifications under ss. 4 & 6 the appropriate Government
would be justified in allowing the matters to drift and to
take in hand the proceeding for assessment of compensation
whenever they think it proper to do. It is intended by the
scheme of the Act that the notification under s. 6 of the
Land Acquisition Act must be followed by a proceeding for
determination of compensation without any unreasonable
delay. But on the facts of the present case, it does not
appear that there was any scope for holding that with a view
to prevent the land owners or the persons claiming
derivative title from them from getting the benefit of the
rise in prices, notifications under ss. 4 and 6. were issued
without any intention to take steps for acquisition of the
lands.
The appeals fail and are dismissed with costs. One hearing,
fee in all the appeals. Separate costs will be paid by the
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appellants to the Corporation and to the State Government.
Y.P. Appeals dismissed.
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