Full Judgment Text
http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 1 of 8
PETITIONER:
KANAIYALAL MANEKLAL CHINAI & ANR.
Vs.
RESPONDENT:
STATE OF GUJARAT & ORS.
DATE OF JUDGMENT:
17/10/1969
BENCH:
SHAH, J.C.
BENCH:
SHAH, J.C.
HEGDE, K.S.
CITATION:
1970 AIR 1188 1969 SCR (2) 908
1969 SCC (3) 456
CITATOR INFO :
R 1980 SC 318 (4)
ACT:
Commissioners of Divisions Act (Bom. Act 8 of 1958) ss.
3(3) 3(4)-Validity of Powers given to State Government-
Notice under s. 4 Land Acquisition Act (1 of 1894) given by
Commissioner Ahmedabad Division (Bombay)-Notice under s. 6
given by Commissioner Baroda Division (Gujarat)-Validity of,
notice under s. 6-Provincial Municipal Corporation Act,
1949-Municipality of Ahmedabad retesting State Government to
acquire land for memorial to mahatma Gandhi-Commissioner in
acquiring land whether must follow procedure in ss. 77 & 78
of Act--Municipal purpose and ’public purpose’ Mention of
’instrumentality’ for out purpose whether necessary to make
notices under ss. 4 and 6 of Land Acquisition Act
enforceable-Application of mind by Commissioner.
HEADNOTE:
The Ahmedabad Municipal Corporation resolved to move the
Government of Bombay State (then undivided) to acquire a
pact of land belonging to the appellants for setting up a
Samadhi of Mahatma Gandhi. The Commissioner of Ahmedabad
Division acting under the Land Acquisition Act, 1894, as
amended by the Commissioners of Division Act, 1958 issued a
notification under s. 4 of the former Act declaring that the
land was likely to be required for a public purpose.
Thereafter the State of Bombay was divided and city of
Ahmedabad became part of the State of Gujarat. The notice
under s. 6 of the Land Acquisition Act in respect of the
appellants’ 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 a petition in the High Court of
Gujarat for a writ quashing the proceedings taken under the
Land Acquisition Act and restraining the authorities from
enforcing the notifications under ss. 4 and 6. The High
Court rejected the petition. With certificate, an appeal
was filed in this Court. The appellants contended : (i)
that the Commissioners of Divisions Act, 1958 was ultra
vires the legislature; (ii) that the Commissioner Baroda
Division was incompetent to issue a notification under s. 6
http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 2 of 8
without issuing a fresh notification under s. 4; (iii) that
the notifications were defective because of noncompliance
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 a municipal purpose; (iv) that
the notifications were unenfcteable because the
"instrumentality" to carry out the purpose was not set out
in the notifications; (v) that the Commissioner had not
applied his mind to the evidence when issuing the
notification under s. 6.
HELD : (i) Because of the decision of this Court in Arnod
Rodericks Anr. the challenge to the vires of the
Commissioners of Divisions Act, 1958 on the ground of
excessive delegation of powers of the State Government and
abdication of the functions of the Legislature, must fail.
[912 6913 A]
Arnold Rodricks & Anr. v. State of Maharashtra & Ors. [1966]
3 S.C.R. 885 followed and applied.
(ii) The notification under s. 4 was issued by the
Commissioner Ahmedabad Division who was competent to issue
it as an officer of the
909
State of Bombay. The Commissioner of Baroda was competent
to exercise the powers under the Commissioners of Divisions
Act which continued to remain in force in the new State of
Gujarat in respect of the Land Acquisition Act and he had
on that account power to issue a notification under s. 6 of
the Act. There was nothing in the Land Acquisition Act or
the Commissioners of Divisions Act requiring that in order
to invest the notification under s. 6 with validity, the
Commissioner of the State of Gujarat had in the first
instance to issue ’a notification under s. 4. [913 B-E]
(iii) Exercise of power to move the State under s. 78 of
the Provincial Municipal Corporation Act is not conditioned
by a prior attempt at purchase by agreement in the manner
laid down in s. 77. The opening Clause of s. 78 merely
indicates an alternative and not a condition. Even if no
attempt, is made under s. 77 to acquire the land by
agreement.it is open to the Commissioner 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 the acquisition of
land [914 D-E]
The notification under s. 4 of the Land Acquisition Act did
not refer to any purpose of the Ahmedabad Municipal
Corporation nor was the acquisition for a purpose for which
the Commissioner was required by the provisions of the
Provincial Municipal Corporation Act, 1949 to acquire the
land. But since the land was required for setting up a
memorial to Mahatma Gandhi who is held in universal
veneration in this country, at a place associated with him,
the purpose was a public purpose within the normal
connotation of that expression as used in s. 4 of the Land
Acquisition Act. That being so it was unnecessary to rely
upon the extended meaning of the expression ’public purpose’
as provided by s. 78(1) of the Provincial Municipal
Corporation Act, 1949. [915 A-D]
Whether the municipal funds if used for the public purpose
of setting Lip of a memorial to Mahatma Gandhi would be
lawfully utilised was not a matter within the periphery of
the enquiry in the present appeal. [915 E]
(iv) Failure to specify the instrumentality which is to
execute the public purpose does not affect the validity of
the notification either under s. 4 or under s. 6 of the
Land Acquisition Act [916 A]
http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 3 of 8
Ramji Popathai v. Jamnadas Shah, (1969) Guj. L.R. 164,
approved.
Vishhnu Prasad Ramdas v Gohil & Ors. v. The State of
Gujarat, [1970] 2 S.C.R. followed.
(v) On the facts of the case he was no justification for
the argument that the Commissioner Baroda Division did not
apply his mind in issuing the notification under s. 6. [916
B]
JUDGMENT:
CIVIL APPELLATE JURISDICTION : Civil Appeal No. 1102 of
1967.
LAppeal from the judgment and order dated July 28, 29, 30.
1965 of the Gujarat High Court in Special Civil Application
No. 622 of 1961.
S. V. Gupte, H. H. Chatrapati and B. Datta, for the
appellants,
N. S. Bindra and S. P. Nayar, for respondents Nos. 1 to
3.
B. Sen and M. N. Shroff, for respondent No. 4.
910
The Judgment of the Court was delivered by
Shah, J. The appellants are owners of "China Baug" situated
on the southern bank of the river Sabarmati within the
limits of the Municipal Corporation of Ahmedabad. The
Ahmedabad Municipal Corporation resolved to move the State
Government to acquire a part of the land of the appellants
for setting, up a Samadlyi of Mahatma Gandhi. On September
10, 1959, the Commissioner. Ahmedabad Division, in the
State of Bombay, issued a notification under S. 4 of the
Land Acquisition Act, stating :
"Whereas it appears to the Commissioner,
Ahmedabad Division, that the lands specified
in the schedule hereto are likely to be needed
for public 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 (1
of 1894) "that the said lands are likely to be
needed for the purpose specified above".
Enquiry was made under s. 5A 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 a
notification under S. 6 of the Land
Acquisition Act on August 31, 1961, that the
lands were required for the public purpose
specified in column 4 of the schedule to the
notification i.e. "Memorial of Mahatma
Gandhi".
The appellants moved a petition in the High
Court of Gujarat for a writ quashing the
proceeding under the Land Acquisition Act and
the two notifications dated September 10, 1959
and August 31, 1961 and for a writ restraining
the Commissioner. Baroda Division, and the
Government of the State of Gujarat from
enforcing the notifications. The High Court
rejected the petition. With certificate
granted by the High Court under Art. 133(l (c)
of the Constitution this appeal is preferred
http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 4 of 8
by the appellants.
Counsel for the appellant contended that :
(1) that the Commissioners of Divisions Act
8 of 1958 pursuant to which the
Commissioners of Divisions were vested with
authority to discharge statutory functions
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 tinder
S. 6 without issuing a fresh notification
under s. 4,
911
(3) that since the land was notified for
acquisition for the purposes of the Municipal
Corporation the provisions of ss. 77 and 78 of
the Provincial Municipal Corporations Act,
1949, should have been complied with. In any
event acquisition of land for "a Memorial to
Mahatma Gandhi" was not acquisition for a
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 the
notifications were illegal and on that account
unenforceable; and
(5) that the Commissioner, Baroda Division,
in issuing the notification under s. 6 did not
apply his mind to the evidence before him and
on that account the notification was liable to
be struck down.
To appreciate the two branches of the first
contention, it is 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 was enacted
that whenever it appears to the approbate
Government that land in any locality is needed
or is likely to be needed for any public
purpose, a notification to that effect shall
be published in the Official Guette, and the
Collector shall cause public notice of the
substance of such notification to be given at
convenient places in the said locality.
Section 6(1), 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 5A, sub-section (2), that any
particular land is needed for a public pur-
pose, or for a Company, a declaration shall be
made to that effect under the signature of a
Secretary to such Govt. or of some officer
duly authorized to certify its orders
The Legislature of the State of Bombay enacted
the Commissioners of Divisions Act 8 of 1958.
By s. 3 of that Act it was provided :
"(1) 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
http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 5 of 8
Act shall be amended in the. manner and to the
extent specified in column 2 thereof.
912
(2) The Commissioner of a division,
appointed under the law relating to land
revenue as amended by the said Schedule, shall
exercise the powers and discharge the duties
conferred and imposed on the Commissioner by
any law for the time being in force, including
the enactments referred to in sub-section (1)
as amended by the said Schedule.
(3)
(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 purpose may, by a
notification in the Official Gazette, add to
or specify in the Schedule the necessary
adaptations and modifications in that
enactment by way of amendment; and thereupon-
(a) every such enactment shall accordingly
be amended and have effect subject to the
adaptations and modifications so made, and
(b) the Schedule to this Act shall be deemed
to be amended by the inclusion therein of the
said provision for amending the enactment".
The Government of the State of Bombay issued on September 5,
1958 a notification under s. 3(4) of the Commissioners of
Divisions Act, conferring and imposing on the Commissioners
concerned 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 Commissioner"
were inserted, and in S. 6(1)(a) after the words
"appropriate Government" the words "or, as the case may be,
the Commissioner" will be inserted.
It is unnecessary to consider the elaborate arguments which
were presented before the High Court that ss. 3(3) and 3(4)
of the Commissioners of Divisions Act 8 of 1958 constituted
excessive delegation of legislative power to the State
Government resulting in abdication of the functions of the
State Legislature, and were on that account in valid. This
Court has in Arnold Rodricks & Anr. v. State of Maharashtra
& Ors.(1) by majority held that the powers conferred by s. 3
(4) on the State Governments are not unguided and that the
State Legislature has by enacting S. 3 (4) not abdicated
its powers in favour a the executive, for it has laid
(1) [1966] 3 S.C.R. 885.
913
down the legislative policy and has left it to the State
Government to reorganise the administration, consequent on
the setting up of Commissioners Divisions. The challenge to
the vires of the Commissioners 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
notification 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 Divisions Act which continued to remain in
force in the new State of Gujarat in respect of the Land
http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 6 of 8
Acquisition Act and had on that account power to issue a
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 Commissioner of the State of Gujarat to
issue the notification under section 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 a notification under s. 4 of the Act de-
claring that the land was needed or was likely to be needed
for any public purpose.
Turning to the second contention, the relevant statutory
provisions may first be read. Section 77 of the Provincial
Municipal
Corporations Act, 1949, insofar as it is relevant, by sub-s.
(1) provides:
"Whenever it is provided by this Act that the
Commissioner may acquire or whenever it is
necessary or expedient for any purpose of this
Act that the Commissioner shall acquire, any
immovable property, such property 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 exceeding such maxima as shall
be approved by the Standing Committee either
generally for any class of cases or specially
in any particular case."
Section 78(1) provides :
"Whenever the Commissioner is unable under
section 77 to acquire by agreement any
immovable property, the
Provincial Government
914
may, in its discretion, upon the application
of the Commissioner, made with the approval,
of the Standing Committee and subject to the
other 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 a public purpose
within the meaning of the Land Acquisition
Act, 1894."
There is nothing in ss. 77(1) & 78(1) which supports the
contention that before initiation of a 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 moved for
acquiring the land for the Municipality, and not otherwise.
Exercise of power to move the State under S. 78 of the Pro-
vincial Municipal Corporations Act, to acquire land is not
conditioned by any such limitation as suggested by counsel
for the appellant. The opening clause of S. 78(1) merely
indicates an alternative and not a condition. Even if no
attempt is made, tinder s. 77 to acquire the land by
agreement, it is open to the Commissioner 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
http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 7 of 8
land. By statutory provision, it is expressly enacted that
where the purpose is one for which the Commissioner of the
Municipality may require the I and under the provisions of
the Provincial Municipal Corporations Act, 1949, or is a
purpose of the Act for which it is deemed necessary or
expedient by the Commissioner of the Municipality to acquire
the land, such a purpose shall be regarded as a 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 a memorial
to Mahatma Gandhi falls within cl. (42) of S. 66 of the
Provincial Municipal Corporations Act, and therefore within
the competence 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 a Samadhi or memorial of the type
could be fairly regarded as incidental to the right and
power to give public instruction which is a matter within
the competence of , the Municipal Corporation under cl. (42)
of 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 the notification
915
under s. 4 of the Land Acquisition Act does not refer to any
purpose of the Ahmedabad Municipal Corporation, nor is the
acquisition for a purpose for which the Commissioner is
required by the provisions of the Provincial Municipal
Corporations Act, 1949, to acquire the land. The land is
needed for setting up a memorial to Mahatma Gandhi at a
place associated with him, and we regard, because of the
universal veneration in which the memory of Mahatma Gandhi
is held in our country, that the purpose was a public
purpose. Counsel for the ’appellants has not attempted to
argue that acquisition of land for setting up a memorial to
Mahatma Gandhi at a place which has some association with
him is not a public purpose. He merely argued that setting
up of a memorial to Mahatma Gandhi is not a purpose for
which the Commissioner is required by the Provincial
Municipal Corporations Act, 1949, to acquire the land, nor
is it a purpose of the Municipality under the Municipal
Corporations Act. The purpose of acquisition being one
which falls within the normal connotation of the expression
"public purpose" within the 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 Corporations Act, 1949,
intended to be utilised for setting up a 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 a matter which is not within the
periphery of the inquiry in this appeal. The land is being
acquired for a purpose which is a public 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 a 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 a notification issued under s. 6 is by sub-s.
(3) conclusive evidence that the land is needed for a public
purpose.
http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 8 of 8
The Land Acquisition Act does not provide that the
instrumentality which is to carry out the purpose must be
set out in the notifications 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 Gujarat held that
if the public purpose for which land is notified for
acquisition is to be executed through ",In instrumentality
other than the State Government ’," failure to specifically
mention "the instrumentality" in the notifications rends
notification invalid. But in Ramji Popatbhai v. Jamnadas
sha a Full Bench of the High Court has overruled that
earlier
(1) (1969) Guj. L.R. 164.
slp. C.I./70-13
916
judgment. In Vishnu Prasad Ramdas Gohil & Others v. The
State of Gujarat(1) we have held, agreeing with the view of
the Full Bench of the Gujarat High Court, that failure to
specify the instrumentality which is to execute the public
purpose does not affect the validity of the notification
either under S. 4 or under S. 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
Survey 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 notification was to be
issued. It is, however, to be noticed that the entire
Survey No. 348B was not notified for acquisition : only a
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 a 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
conveyed thereby that a part of the land out of Survey No.
348B which was not needed for a public purpose was excluded
from the notification.
The appeal fails and is dismissed. Having regard to the
circumstances of the case, there will be no order as to
costs.
G.C. Appeal dismissed.
(1) C.A. No. 1983 of 1966 decided on Oct. 9 1969.
917