Full Judgment Text
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PETITIONER:
KHADIM HUSSAIN
Vs.
RESPONDENT:
STATE OF U.P. & OTHERS
DATE OF JUDGMENT18/12/1975
BENCH:
BEG, M. HAMEEDULLAH
BENCH:
BEG, M. HAMEEDULLAH
RAY, A.N. (CJ)
SARKARIA, RANJIT SINGH
SHINGAL, P.N.
CITATION:
1976 AIR 417 1976 SCR (3) 1
1976 SCC (1) 843
ACT:
U.P. Town Improvement Act, 1919-Sec. 36 U.P. Avas Evam
Vikas Parishad Adhiniyam 1966-Sec. 32(1)-Trust appointed
under an earlier Act-Term of office took place under
subsequent Act-If invalid Change in the name of the scheme-
If invalidates.
HEADNOTE:
On March 21, 1963, the trustees of the Gorakhpur Town
Improvement Trust were appointed by a notification under s.
4 of the U.P. Town Improvement Act, 1919. The Trust notified
a Housing Scheme on March 13, 1965, under s. 36. The 1919
Act was repealed by the U.P. Avas Evam Vikas Parishad
Adhiniyam 1966, and, the Housing Scheme was finally
sanctioned under s. 32(1) of the
The appellant challenged in the High Court the validity
of the Housing Scheme, but, the High Court dismissed the
writ petition.
On appeal to this Court, it was contended (1) that the
trust was never properly constituted because the
commencement of the terms of office of first trustees took
place only after the repeal of the 1919 Act; (ii) that, the
scheme. as sanctioned by the Trust, not being the same as
the one which was first notified under the 1919-Act, could
not be continued under the provisions of s. 97 of the 1966-
Act. and (iii) that, the notification under s. 32(1) of
1966-Act, which was to be equated with a notification under
s. 6 of the Land Acquisition Act, 1894, was invalid because
it was not published within two years after the commencement
of the Land Acquisition (Amendment and Validation) Act,
1967.
Dismissing the appeal,
^
HELD: (1) (a) Section 100 of the 1919-Act which deals
with validation of acts and proceedings, completely refutes
the argument based upon a specious distinction between the
appointment of members of the Trust and the constitution of
the Trust and upon an unwarranted condition sought to be
imposed upon the competence of members of the Trust to act.
[5D-E]
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(b) A Trust duly incorporated by the terms of a statute
cannot be lacking in power or competence to act at all
simply because s. 8 meant to notify the commencement of
office of the first trustees only under the Act, has not
been complied with simultaneously with or soon after the
appointment of the first trustees. [5E-G]
(c) The whole object of s. 8 is only to determine the
date of commencement of the term of office of the members of
the Trust in order to fix the date of its expiry so as to
enable fresh appointments to be made in time. Assuming that
the Gorakhpur Improvement Trust was first constituted in
1963, there is no provision indicating that the constitution
of the Trust was not complete as a soon as it was declared
by statute and a Chairman and Trustees took charge of their
offices by reason of their appointment as trustees. This had
been done by notification under s. 4(2). Therefore, the need
for a notification under s. 8 had not been felt till the
expiry of the term of office of the first trustees drew
near. This explains why the subsequent notification which
was really a corollary of a notification under s. 4(2) took
place so late when the three years’ period of tion
proceedings. [10G-H; 11B-C]
(d) Even assuming that the date of the coming into
force of the 1966-Act Was subsequent to February 21, 1966,
absence of a notification under s. 8 could not invalidate
any proceeding of the Trust. Even if a notification under s.
8 should have followed soon after the notification under s.
4(2) of the 1919-Act,
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yet, s. 100 prevents any such technical irregularity from
invalidating any proceeding of the Trust, including the
framing and implementation of the scheme. [6B-D]
(2) The appellant has not shown how any feature of the
originally framed scheme, apart from an acquisition by it of
a new Hindi appellation, was altered so that it could not be
continued under s. 97(3) of the 1966-Act. The argument is
based on speculation about the changed character of the two
supposedly separate and different schemes. The scheme had
been referred to by the same name in sd far as the locality
to which it related was concerned. The plots involved were
admitted to be the same both in the initial and the final
notification. [6E-G]
(3 (a) The object of the notification under s. 6 of the
Land Acquisition Act is to ensure that the Government is
duly satisfied after an enquiry that the land under
consideration was really needed for a public purpose and
that the declaration was to operate as conclusive evidence
to show that this was so. The conclusiveness of this
declaration could not be questioned anywhere if the
procedure dealing with its making has been observed. [10D-E]
(b) Under s. 4(2) of the Land acquisition (Amendment
and Validation) Act, 1967, it is the declaration which has
to take place within two years of the expiry of the
commencement of the ordinance. If an unreasonable delay
between declaration and its notification is shown to exist
it may raise a suspicion about the existence of the
declaration itself or about the bona fides of acquisition
proceedings. [10G-H; 11B- C]
In the instant case neither the existence nor the bona
fides of the declaration had been questioned. The appellant
had neither asserted nor shown that no declaration was made
within the period of time fixed for it. [11C-D]
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JUDGMENT:
CIVIL APPELLATE JURISDICTION : Civil Appeal No. 1754 of
1974.
(Appeal by special leave from the judgment and order
dated the 9-10-1972 of the Allahabad High Court of
Judicature at Allahabad in Civil Misc. Writ No. 2830 of
1970)
D. V. Patel, B. P. Singh, for the appellant
J. P. Goyal and Shreepal Singh, for respondents 2-3.
G. N. Dikshit and O. P. Rana for respondents 1 & 4.
The Judgment of the Court was delivered by
BEG, J. The appellant before us, by grant of special
leave to appeal against the judgment of a Division Bench of
the Allahabad High Court, challenges the validity of a-
Housing Scheme, first notified on r 13th March, 1965, under
Section 36 of the U.P. Town Improvement Act No. VIII of 1919
(hereinafter referred to as ’the Act’), and then finally
sanctioned, under Section 32(1) of the U.P. Awas Evam Vikas
Parishad Adhiniyam (U.P. Act I of 1966) (hereinafter
referred to as ’the Adhiniyam’), and published on 3rd May,
1969 in the U.P. Gazette.
Learned Counsel for the petitioner has invited our
attention to the five objections put forward and rejected by
the Division Bench to the acquisition for purposes of the
scheme. Out of these, he has abandoned two. He confines his
objections to three which are as follows:
Firstly, as the notification under section 8 of the Act
of 1919, indicating the commencement of’ the term of the
office of the Ist Trustees took place only on 21st February,
1966, after the Act of 1919 had been repealed, the Trustees,
who had been appointed by a
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notification dated 21st March, 1963, under Section 4 of the
Act of 1919, could not have framed any scheme because the
Trust itself was never properly constituted.
Secondly, even if the first objection be not
sustainable, the scheme, as sanctioned by the Trust, not
being the same as the one which was first notified under the
Act of 1919, could not be continued under the provisions of
Section 97 of the Adhiniyam.
Thirdly, the notification made under Section 32(1) of
the Adhiniyam of 1966, with regard to the "Rustampur-
Tiwaripur Vikas Yojna No. 5", which was to be equated with a
notification under Section 6 of the Land Acquisition Act,.
1894, was invalid, because it was not published within two
years after the commencement of the Land Acquisition
(Amendment and Validation) ordinance, 1967, as required by
Section 4(2) of the Land Acquisition (Amendment and Cr -
Validation) Act of 1967.
With regard to the 1 st objection the relevant
provisions placed before us are Sections 4 and 8 of the Act
of 1919. They are:
"4.Constitution of Trust.-(1) Trust shall consist of
the following Trustees, namely-
(a) a Chairman;
(b) the Chairman of the municipal board;
(c) repealed.
(d) seven other persons in Kanpur and five other
persons other places.
(2) The Chairman and the persons referred to in clause
(d) of sub-section (1), shall be appointed by the
State Government by notification.
(3) The Chairman of the Municipal Board shall be a
Trustee ex-officio.
(4) & (5) repealed.
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(6) Of the persons referred to in clause (d) of sub-
section (1) not more than one shall be a person in
the service of the Government".
8. Commencement of term of office of first Trustees.-
(1) The term of office of the first Trustees
shall commence on such date as shall be
notified in this behalf by the State
Government.
(2) A person ceasing to be a member by reason of
the expiry of his term of office shall, if
otherwise qualified, be eligible for
renomination".
Section 1, sub.s. (3) says:
"1(3)This section and section 66 shall come into
force at once. The State Government may, by
notification /
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direct that the rest of the Act shall come
into operation in the whole or any part of
any municipality, and in any area adjacent
thereto, on such date as may be specified in
such notification".
It is not disputed that the relevant notifications had
been issued bringing the whole Act into operation before the
notification of 21st March, 1963, with which we are
concerned here, was published r showing that the Governor of
U.P. was pleased to appoint the District Magistrate of
Gorakhpur as the Chairman of the Gorakhpur Improvement Trust
and others as Trustees of it.
Chapter II of the Act 1919 dealing with constitution of
trusts, begins with Section 3, which reads as follows: -
"3. Creation and incorporation of Trust.-The duty of
carrying out the provisions of this Act in any
local area shall, subject to the conditions and
limitations hereinafter contained, be vested in a
board to be called. ’The (name of town)
Improvement Trust’, hereinafter called ’the
Trust’, and every such board shall be a body
corporate and have perpetual succession and a
common seal, and shall by the said name sue and
be sued".
We have already set out Section 4 above. Section S
deals with resignation of trustees. ’
Sections 6 and 7 are also relevant. They read as
follows:
"6. Term of office of Chairman.-The term of office of
the of the Chairman shall ordinarily be three
years, provided that he may be removed from office
by the State Government at any time
7. Term of office of other Trustees.-Subject to the
fore going provisions of the term of office of
every Trustee appointed under clause (d) of sub-
section (1) of Section 4 shall be three years".
Section 9 deals with remuneration of the Chairman,
Section 10 with removal of trustees, Section 11 with the
disabilities of trustees removed under Section 10, and
section 12 with the filling up of casual vacancies.
Chapter III deals with proceedings of the trust and its
Committees. Chapter IV deals with improvement schemes.
Chapter VI deals with acquisition and disposal of land.
Chapter VII deals with finance. Chapter VIII with framing of
rules, and Chapter IX with procedures and penalties. Chapter
X, which is the last chapter, . deals with certain
supplementary provisions among which is Section 100
providing as follows:
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"100.Validation of acts and proceedings.-(1) No act
done or proceeding taken under this Act shall be
questioned on the ground merely of-
(a) the existence of any vacancy in, or any
defect in the constitution, of the trust or
any Committee or
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(b) any person having ceased to be a trustee; or
(c) any trustee, or any person associated with
the Trust under Section 14 or any other
member of a Committee appointed under this
Act having voted or taken any part in any
proceeding in contravention of Section 117 or
(d) the failure to serve a notice on any person,
where no substantial injustice has resulted
from such failure or
(e) any omission, defect or irregularity not
affecting the merits of the case.
(2) Every meeting of the Trust, the minutes of the
proceeding of which have been duly signed as
prescribed in clause (g) of sub-section (1) of
Section 13, shall be taken to have been duly
convened and to be free from all defect and
irregularity".
It is not denied that the Improvement Trust of
Gorakhpur had been actually working under the above
mentioned provisions of the Act of 1919. We think that
Section 100 of the Act of 1919, in the context of the whole
Act, completely refutes the argument based upon a specious
distinction between appointment of members of the trust and
the Constitution of the Trust, and upon an unwarranted
condition sought to be imposed upon the competence of
members of the Trust to act said to be embedded in Section 8
which was, we think never intended to serve such a purpose.
Section 4, dealing with the Constitution of the Trust,
indicates that the appointment of the Chairman and members
completes the Constitution of the trust. A trust, duly
incorporated by the terms of a statute, armed with all the
powers vested in it by the provisions, mentioned above, of a
statute which has become operative, cannot be lacking in
power or competence to act at all simply because Section 8,
meant to notify the commencement of office of the first
trustees only under the Act, has not been complied with
simultaneously with or soon after the appointment of the
first trustees.
Section 8 is the last of the three Sections which deal
with duration of terms of offices of the Chairman and the
trustees. It is confined to the commencement of the "term"
by which is meant the duration of the period of office of
the first trustees so that subsequent trustees may properly
take over after the period of office of the first trustees
terminates. The whole object seemed to be only to deter mine
the date of commencement of their term in order to fix the
date of its expiry so as to enable fresh appointments to be
made in time. Assuming that the Gorakhpur improvement Trust
was first constituted in 1963, there is no provision
indicating that the constitution of the trust was not
complete as soon as it was declared by statute and a
Chairman and trustees took charge of their offices by reason
of their appointment as trustees. This had been done by the
notification
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under Section 4(2). Therefore, the need for a notification
under Section 8 does not seem to have been felt until the
time when the expiry of the fixed term of office of the
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first trustees drew near. This explains why the subsequent
notification, which was really a corollary of a notification
under Section 4(2), took place so late when the three years’
period of their offices was about to come to an end.
A notification under Section 8 was probably quite
unnecessary by reason of Sections 96 and 97 of Adhiniyam of
1966 which repealed U.P. Act No. VIII of 1919 and dissolved
the trust "on and from the date on which" the Adhiniyam came
into force in an area. However, even assuming that the date
of the coming into force of the Adhiniyam, and, therefore,
the repeal of the Act for Gorakhpur was subsequent to 21st
February, 1966, the absence of a notification under Section
8 could not, in our opinion, invalidate any proceeding of
the Trust. It was conceded that a notification under Section
8 could have been combined with the notification under
Section 4(2). Even if, strictly speaking, a notification
under Section 8 should have followed soon after the
notification under Section 4(2) of the Act of 1919, yet,
Section 100 prevents any such technical irregularity from
invalidating any proceeding of the trust, including the
framing and implementation of the Scheme before us.
Coming to the second objection, we find that the only
ground upon which it is pressed is that the preliminary
notification, of which no copy has been placed before us,
was said to contain what is described as "a housing and
accommodation scheme", falling under Section 24(g) read with
Section 31 of the Act of 1919, whereas, the finally
sanctioned scheme, called "Rustampur Tiwaripur Vikas Yojna
No. 5 KP". which is translated by learned Counsel for the
appellant as a "Land Development Scheme" is alleged to fall
under Section 24(f) read with Section 30 of the Act of 1919.
This argument seems based on mere speculation about the
changed character of the two supposedly separate and
different schemes. The scheme had been referred to by the
same name in so far as locality, to which the scheme
relates, is concerned. The plots involved are admitted to be
the same both in the initial and final notifications. It is
immaterial that Section 24 of the Act of 1919 lists eight
types of Schemes. We have not been shown how any feature of
the originally framed scheme, apart from an acquisition by
it of a new Hindi appellation, was altered so that it could
not be continued under Section 97(3) of the Adhiniyam of
1966 which lays down:
"97(3) Every scheme and all proceedings relating
thereto under the U.P. Town Improvement Act, 1919 (U.P.
Act VIII of 1919), including proceedings for the levy.
assessment or recovery of betterment tax, pending on
the appointed day shall stand transferred to the Board,
which shall proceed further with the scheme or with the
execution thereof or with the levy, assessment or
recovery of betterment fee in connection therewith,
from, the stage at which it
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was transferred to it, in accordance with the
corresponding provisions of this Act:
Provided that the Board may, if it thinks fit,
recall any step or proceeding already gone through
under the said Act and take that step or proceeding
afresh under the corresponding provision of this Act".
The third objection appears, at first sight, to be
little more substantial than the first two, but, on closer
examination, we find it to be also untenable for reasons we
now proceed to give.
We have already noticed that the dates of notifications
under Section 36 of the Act of 1919, and under Section 32(1)
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of the Adhiniyam of 1966 were 13th March, 1965, and 3rd May,
1969, respectively.
Section 36 of the Act of 1919 provided:
"36. Preparation, publication and transmission of
notice as to improvement schemes, and supply of
documents to applicants.-(1) When any improvement
scheme has been framed, the Trust shall prepare a
notice, stating:-
(a) the fact that the scheme has been framed,
(b) the boundaries of the area comprised in the
scheme, and
(c) the place at which particulars of the scheme,
a map of the area comprised in the scheme,
and a statement of the land which it is
proposed to acquire, may be seen at
reasonable hours
(2) The Trust shall:-
(a) cause the said notice to be published weekly
for three consecutive weeks in the official
Gazette and in a local newspaper- or
newspapers (if any) with a statement of the
period within which objections will be
received, and,
(b) send a copy of the notice to the Chairman of
the municipal board.
(3) The Chairman shall cause copies of all
documents referred to in clause (c) of sub-
section (1) to be delivered to any applicant
on payment of such fees as may be prescribed
by rule under Section 73".
Section 56 of the Act of 1919 reads:
"56. Power to acquire land under the Land
Acquisition Act, 1894,-The Trust may, with the previous
sanction of the State Government, acquire land under
the provisions of the Land Acquisition Act, 1894, as
modified by the provisions of this Act, for carrying
out any of the purposes of this Act".
2-L390SCI/76
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Section 58 of the Act indicates that the modifications
made by the Act, subject to which the procedure of the Land
Acquisition Act of 1894 is to be applied to a scheme under
the Act, are given in paragraph 2 of the schedule to the Act
which lays down:
"2. Notification under Section 4 and declaration
under Section 6 to be replaced by notifications under
Sections 36 and 42 of this Act.-
(1) The first publication of a notice of an
improvement Scheme under Section 36 of this Act shall
be substituted for and have the same effect as
publication in the official Gazette and in the
locality, of a notification under sub-section (1) of
Section 4 of the said Act, except where a declaration
under Section 4 or Section 6 of the said Act has
previously been . made and is still in force.
(2) Subject to the provisions of Sections 10 and
11 of this Schedule, the issue of a notice under sub-
section (4) of Section 29 in the case of land acquired
under that sub-section, and in any other case the
publication of a notification under Section 42 shall be
substituted for and have the same effect as a
declaration by the State Government under Section 6 of
the said Act, unless a declaration under the last
mentioned section has previously been made and is still
in force".
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Section 97 of the Adhiniyam, already set out above,
applies the corresponding provisions of the Adhiniyam of
1966 to proceedings begun under the Act of 1919.
It is clear, from the provisions set out above, that
the Act and the Adhiniyam apply Sections 4 and 6 of the Land
Acquisition Act, 1894, to the acquisition for the scheme
before us in so far as their effects are concerned. It is
arguable that, if the effectiveness of the notifications t
under Sections 4 and 6 of the Land Acquisition Act is cut
down or modified or amended in any way, subsequent to the
date of the passing of the Adhiniyam, the amendments may not
apply, but the effect of the notifications, where the Act
and the Adhiniyam were enacted, would be all that need be
considered. It is true that the notices are procedural
matters, but they affect substantive rights as well. The
date of notification under Section 4 affects the amount of
compensation which may be determined and a notification
under Section 6 operates as conclusive evidence that the
land is needed for a public purpose and enables the
appropriate Government to proceed to acquire the land.
Nevertheless, an acquisition under Section 56 of the
repealed Act as well as under Section 55 of the Adhiniyam of
1966 takes place expressly "under" the Land Acquisition Act
of 1894. This may well mean that, if the machinery of
acquisition is modified in some respect by an amendment, the
amended machinery alone can apply. The High Court had not
decided this question. We also think that it is not
necessary for us to decide this question as it has not been
argued, on behalf of the respondent, that the amendment of
the Land Acquisition Act, 1967, would not apply here. We,
therefore, proceed
9
on the assumption that the Land Acquisition Act, as amended
in 1967, was applicable here.
Section 4(2) of the Land Acquisition (Amendment and
Validation) Act 1967, lays down:
"4(2) Notwithstanding anything contained in clause
(b) of sub-section (1), no declaration under section 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,
sub-section (1) of Section 4 of the Principal Act,
shall be made after expiry of two years from the
commencement of the said ordinance".
In the case before us, the first notification under
Section 36 of the Act, having been equated with the
preliminary notification under Section 4 of the Land
Acquisition Act and published on 13th March, 1965, the
"declaration" under Section 6 had to be made within two
years of the coming into force of the ordinance on 20th
January, 1967. Neither the declaration nor the actual
notification have been placed before us. Nevertheless, the
contention on behalf of the appellant is that, as the
notification under Section 32(1.) of the Adhiniyam took
place on 3rd May, 1969, no declaration under Section 6 of
the Land Acquisition Act could be made on this date, the
last date for such declaration being 19th January, 1969. No
doubt both sides are agreed that, as the judgment of the
High Court reveals, the date of the notification under
Section 32(1) of the Adhiniyam is 3rd May, 1969. We,
however, think that the appellant’s contention before us
ignores the very apparent distinction made in the provisions
of Section 6 of the Land Acquisition Act between a
declaration and its notification.
Section 6 of the Land Acquisition Act reads as follows:
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"6(1) Subject to the provisions of Part VII of
this Act, when the appropriate Government is satisfied,
after considering the report, if any, made under
Section SA, sub-section (2), that any particular land
is needed for a public purpose, or for a Company, a
declaration shall be made to that effect under the
signature of a Secretary to such Government or of some
officer duly authorized to certify its orders, and
different declarations may be made from time to time .
in respect of different parcels of any land covered by
the same notification under Section 4, sub-section (1),
irrespective of whether one report or different reports
has or have been made (wherever required) under Section
SA, sub-section (2):
Provided that no declaration in respect of any
particular land covered by a notification under Section 4,
sub-section (1), published after the commencement of the
Land Acquisition (Amendment and Validation) ordinance,
10
1967, shall be made after the expiry of three
years from the date of such publication.
Provided further that no such declaration shall be
made unless the compensation to be awarded for such
property is to be paid by a Company, or wholly or
partly out of public revenues or some fund controlled
or managed by a local authority.
(2) Every declaration shall be published in the
official Gazette, and shall state the district or other
territorial division in which the land is situate, the
purpose for which it is needed, its approximate area,
and, where a plan shall have been made of the land, the
place where such plan may be inspected.
(3) The said declaration shall be conclusive
evidence that the land is needed for a public purpose
or for a Company, as the case may be; and, after making
such declaration, the appropriate Government may
acquire the land in manner hereinafter appearing"
It is clear from the provisions set out above that the
object of the notification under Section 6 is to ensure that
the Government is duly satisfied, after an enquiry at which
parties concerned are heard, that the land under
consideration is really needed for a public purpose and that
the declaration is to operate as conclusive evidence to show
that this is so. The conclusiveness of this declaration
cannot be questioned anywhere if the procedure dealing with
its making has been observed. The notification which takes
place under Section 6(2), set out above, follows and serves
only as evidence of the declaration. That the declaration
mentioned in Section 6(1),, set out above, differs from its
notification is shown by the fact that it has to be signed
by a Secretary or other officer duly authorized. The
declaration is in the form of an order. The notification is
its publication and proof of its existence. It has been
shown, in the case before us that the deemed notification
under Section 6 took place about three and a half months
after the expiry of two years from the commencement of the
ordinance of 1967. But, it is not argue on behalf of the
appellant that the declaration under Section 6 was similarly
delayed. Presumably, it was within time.
A look at the amendment introduced by the Section 4(2)
of the Land Acquisition (Amendment and Validation) Act,
1967, shows that it is the declaration which has to take
place within two years of the expiry of the commencement of
the ordinance which came into force on 20th January, 1967.
In fact, Section 4(2) of the Amendment Act of 1967, set out
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above, itself makes a distinction between a "declaration"
under Section 6 and its "notification" under Section 4 of
the principal Act. It does not say that no notification
under Section 6 of the principal Act can take place beyond
the time fixed. The prohibition is confined to declarations
made beyond the specified period. If the case of the
appellant could be that no declaration was
11
made within the prescribed time, it was his duty to prove
it. He has not discharged that onus.
As indicated by the Division Bench of the Allahabad
High Court, the amendment of 1967, was the result of a
decision of this Court in the State of Madhya Pradesh & Ors.
v. Vishnu Prasad Sharma & Ors.(1) holding successive
notifications, under Section 6, with excessive intervening
delay between a notification under Section 4(2) and a
declaration under Section 6, keeping the owner or other
person entitled to compensation in suspense all the time, to
be illegal. It may be that, if an unreasonable delay between
a declaration and its notification is shown to exist, it may
raise a suspicion about the existence of the declaration
itself or about the bona fides of acquisition proceedings.
This, however, is not the position in the case before us.
Neither the existence nor the bona fides of the declaration
have been questioned. It has not been either asserted or
shown, as already mentioned, that no declaration was made
with in the period of time fixed for it. We, therefore,
reject the last objection also.
Consequently, we dismiss this appeal, but, in the
circumstances of the case, we make no order as to costs.
P.B.R. Appeal dismissed.
(1) [1966] 3 S.C.R. 557.
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