Full Judgment Text
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PETITIONER:
ABDUL HUSEIN TAYABALI & ORS.
Vs.
RESPONDENT:
STATE OF GUJARAT & ORS.
DATE OF JUDGMENT:
20/09/1967
BENCH:
SHELAT, J.M.
BENCH:
SHELAT, J.M.
SHAH, J.C.
SIKRI, S.M.
CITATION:
1968 AIR 432 1968 SCR (1) 597
CITATOR INFO :
F 1976 SC1697 (20,21,25,27)
F 1977 SC 497 (7)
D 1985 SC 736 (16)
ACT:
Land Acquisition Act, 1894, ss. 3(c), 4, 5A and 6-Land
Acquisition (Companies) Rules r. 4-Special Land Acquisition
Officers authorised by general notification to perform
functions of collector under the Act-Inquiry and Report
under r. 4 by Officer on land required by company-Whether he
was ’specially appointed’ within the meaning of r. 4-
Therefore whether subsequent notifications under- ss. 4 and
6 valid Appellants given opportunity to represent against
acquisition in s. 5A inquiry-Whether entitled to a further
opportunity before issue of s. 6 notification.
HEADNOTE:
On October 1, 1963, the State Government issued a
notification under section 3(c), authorising one M who was
then the Special Land Acquisition Officer, Baroda, to
perform the functions of a Collector and also directed him
to hold an enquiry under the Land Acquisition (Companies)
Rules on the application of the third respondent company
requesting the government to acquire the appellant’s land.
In supersession of that notification, the Government issued
another notification on October 11, 1963 authorising all
Special Land Acquisition Officers to perform the functions
of the Collector under the Act within the area of their
respective jurisdiction. After M had made an enquiry under
Rule 4, the respondent State Government issued a
notification under Section 4 of the Land Acquisition Act,
1894, on August 28. 1964 in respect of the appellant’s land
which was stated to be required for the establishment of a
factory by the third respondent company. Objections filed
by the appellants in an -enquiry under s. 5A were rejected
and the State Government thereafter issued a notification
under s. 6 on October 18, 1965. The appellants challenged
the notification by writ petitions but these were, dismissed
by the High Court.
In the appeal to this Court, it was contended on behalf of
the appellants, inter alia. (i) that M was only a Special
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Land Acquisition Officer and not the Collector within the
meaning of Rule 4; in any event the notification of October
11, 1963 did not "specially" appoint him but was a general
notification authorising all the Special Land Acquisition
Officers in the State appointed not only before the date of
s. 4 notification but also those who would be appointed in
future,. furthermore, the notification did not "appoint" but
simply authorised him to perform the functions of the
Collector, the State Goverrunent had not given any direction
to him to make a report as required by .Rule 4; therefore
the enquiry held by him under that Rule and the ,report made
was invailed and consequently no notification either under
s. 4 or s. 6 could be validly issued; (ii) that the s. 6
notification was issued without complying with Part VII of
the Act and without the valid consent of the State
Government as required by s. 39; (iii) that the acquisition
was made mala fide and without application of mind to the
relevant facts: (iv) that the acquisition did not involve
any public purpose: and (v) that the State Government was
bound to give an opportunity of being heard to the
appellants before taking a decision under s. 5A particularly
when the report made by M was against the acquisition,
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HELD: Dismissing the appeal.
(i) No objection to the appointment of M to perform the
functions of the Collector under s. 3(c) or to his
competence to make the enquiry and the report under Rule 4
or their legality can be validly made. It follows that the
consent given by the State Government in initiating
acquisition proceedings was validly given and was in comp-
liance with the provisions of Part VII of the Act and the
State Government could validly issue the impugned
notifications. [604G]
There being nothing repugnant in the subject or context, the
word "Collector" must, by virtue of s. 20 of the General
Clauses’ Act, 1897, have the same meaning in the Rules as in
s. 3(c) of the Act which includes an officer specially
appointed to perform the functions of the Collector. [602H]
The words "specially appointed" simply mean that as a Sp.
L.A. Officer is not a Collector and cannot perform the
functions of a Collector under the Act. he has to be
"specially appointed", i.e. appointed for the specific
purpose of performing those functions. The word "specially"
has therefore reference to the special purpose of appointing
and is not used to convey the sense of a special as against
a general appointment. Furthermore, s. 15 of the General
Clauses Act provides that where a Central Act empowers an
authority to appoint a Person to Perform a certain function
such power can be exercised either by name or by virtue of
office. [603C-F]
In the context of s. 3(c) when an officer is authorised to
perform the functions of the Collector, it means that he is
appointed to perform those functions. The distinction
between the two is without a difference. [604B]
There is no force in the contention that the enquiry under
rule 4 has to be held after the notification under s. 4 and
not before. There is nothing in rule 4 or any other rule to
warrant such a proposition.
(ii) On the facts, the appellants had failed to establish
their allegation either as to mala fides or the non-
application of mind by the State Government.
(iii) There is no force in the contention that when the
appellant’s lands were already being used for the
manufacture of a building, material and that was also a
public purpose, the legislature could not have intended to
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empower the Government to destroy that purpose and
substitute in its place another Public purpose. [606D]
Arora Case, [1962] Supp, 2’S.C.R. 149: referred to.
(iv) It is not disputed that during the s. 5A enquiry the
appellants were heard and their objections were taken on
record. The record of the enquiry is required under s. 5A
to be sent to the Government so as to enable the Government
-to decide whether the acquisition is necessary for a public
purpose or for a company. The Government thus had before it
not only the opinion of M but also all that the appellants
had to say by way of objections against the proposed
acquisition. The appellants therefore had an opportunity,
of being heard. Neither s. 5A nor any other provision of
the Act lays down that a second opportunity has to be given
before the issuance of the Section 6 notification. [606F-
607A]
JUDGMENT:
CIVIL APPELLATE JURISDICTION: Civil Appeals Nos. 369 to 375
of 1967.
599
Appeals from the judgment and order dated October 15, 1966
of the Gujarat High Court in Special Civil Applications Nos.
1475, 1479, and 1480 of 1965, and 119, 120, 12.2 and 125 of
1966 respectively.
G.L. Sanghi and Ravinder Narain, for the appellants (in all
the appeals).
Bishan Narain, R. H. Dhebar and S. P. Nayar, for respondents
Nos. 1 and 2 (in all the appeals).
Arun H. Mehta and I.N. Shroff, for respondent No. 3 (in all
the appeals).
The Judgment of the Court was delivered by
Shelat, J. These appeals by certificate are directed against
the judgment of the High Court of Gujarat dismissing the
writ petitions filed by the appellants for quashing the
notifications dated August 28, 1964 and October 18, 1965
respectively issued under sections 4 and 6 of the Land
Acquisition Act,1 of 1894.
The appellants are the owners of the lands in question
situate at Ranoli, District Baroda. The 3rd respondent
Company also owns about 140 acres of land in the same
village. The appellant’s lands are either situate adjacent
to and between the Company’s lands and the railway lines or
are enclaves surrounded by lands belonging to the Company.
On July 22, 1961 the State Government issued a notification
under sec. 4 of the Act to the effect that the appellants’
said lands were or were likely to be needed for a public
purpose,, viz., for a fertilizer factory. That notification
was withdrawn on September 11, 1961 as the lands were stated
to be unsuitable for such a factory. The Government however
issued the very next day a fresh notification under sec. 4
in respect of the same lands, this time for the purpose of
the 3rd respondent Company. Some of these appellants
thereupon filed writ petitions challenging its validity.
While these petitions were pending before the High Court
this Court delivered its decision in what is known as the
first Arora Case(1). To get over the difficulties arising
from that decision, first an Ordinance and then the
Amendment Act XXXI of 1962, were passed. The Amendment Act
was brought into force from July 20, 1962 with retrospective
effect. The Central Government thereafter made Rules under
sec. 55 of the Act called the Land Acquisition (Companies)
Rules which were brought into force from June 22, 1963. On
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July 24, 1963 the State Government withdrew the notification
dated September 12, 1961 whereupon the writ petitions filed
by the appellants challenging the said notifications were
withdrawn. In the meantime one D.K. Master, who was then
the Special Land Acquisition Officer, Baroda, started an
inquiry under Rule 4 of the said Rules. On August 28,1964
the State Government issued a notification under
(1) [1962] Supp. 2 S.C.R. 149:A.I.R. 1962 S.C. 764.
600
sec. 4 stating that the appellants’ said lands were needed
or were likely to be needed for the establishment of a
factory of the 3rd respondent Company. The appellants filed
their objections in the inquiry then held under sec. 5A but
they were rejected. On October 18, 1965 the State
Government issued sec. 6 notification declaring that the
said lands were needed for the factory of the 3rd respondent
Company which it was stated was taking steps or en,gaging
itself for manufacture of optical bleaching agents, interme-
diate dye-stuffs etc., which according to the Government was
for a public purpose.
The appellants thereupon filed writ petitions from which
these appeals arise challenging the two notifications dated
August 28, 1964 and October 18, 1965 respectively. When
these writ petitions came on for hearing the State
Government produced a notification dated October 11, 1963
authorising the Special Land Acquisition Officers of the
State to perform the functions of the Collector under sec.
3(c). On certain contentions having been raised on the
basis of this notification, the High Court adjourned the
hearing to enable the State Government to explain the
circumstances and the reasons for issuing the said
notification. On August 25, 1966 the said Master filed a
further affidavit clarifying the Government’s position and
the circumstances in which he performed the functions of the
Collector under sec. 3(c).
Before the High Court the appellants contended that the pro-
cedure laid down in the said Land Acquisition (Companies)
Rules was not followed, that the purpose for which the
acquisition was being made was not a public purpose within
the meaning of sec. 40(1)(a), that the acquisition was made
mala fide and in colourable exercise of power, that the
State Government had not applied its mind to the facts of
the case and lastly that the inquiry under sec. 5A was a
quasi-judicial inquiry and that as an opportunity to be
heard was not given to the appellants the proceedings under
sec. 5A violated natural justice. Counsel, however,
conceded that the inquiry under section 5A was
administrative but contended that the appellants were still
entitled to be heard before the State Government formed its
satisfaction that the lands were required for the Company.
The High Court rejected all these contentions and dismissed
the writ petitions. Hence these appeals.
Counsel for the appellants formulated the following five
pro,positions on which he impugned the High Court’s
judgment:
(1)that the inquiry under Rule 4 of the Land Acquisition
(Companies) Rules and the consequent report made by Master
to the Government were invalid; therefore there being no
valid report under Rule 4 read with section 40, no
notification either under s.4 ,,or sec. 6 could be validly
issued;
601
(2) that sec. 6 notification was issued without complying
with Part VII of the Act and without a valid consent of the
State Government as required by sec. 39 and therefore no
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notification either under sec. 4 or sec. 6 could be lawfully
issued;
(3) that the acquisition was made mala fide and without ap-
plication of mind to the relevant facts;
(4) that the acquisition did not involve any public
purpose; and
(5) that the State Government was bound to give an oppor-
tunity of being heard to the appellants before taking
decision under sec. 5A, particularly when the report of the
said Master was against the acquisition.
We shall consider these propositions in the order in which
they were urged.
As regards propositions 1 and 2. the argument was that Mas-
ter was only a Sp. L.A. officer but was not the Collector
within the meaning of Rule 4 and therefore the inquiry held
by him under that Rule and the report made consequent
thereto were invalid; that even if Master can be held to
have been authorised to perform the functions of the
Collector he was not "specially appointed" as Collector;
that the State Government had not given any direction to him
to make a report as required by Rule 4 and that the
notification dated October 11, 1963 did not "appoint" but
simply authorised him to perform the functions of the
Collector.
It is not in dispute that as required by the said Rules the
State Government had apponited a Land Acquisition Committee
before it issued the notification under sec. 4. The
affidavit of Master establishes that he worked as a Sp.
L.A. officer at Baroda from December 6, 1961 to April 29
1965. On February 11, 1963 he was appointed to officiate as
Special Land Acquisition Officer, Baroda. On October 1.
1963 the Government wrote a letter to him forwarding the
application dated September 11, 1963 of the 3rd respondent
Company requesting the Government to acquire the lands in
question and directing him to hold an inquiry according to
the said Rules and to make a report. The letter also stated
that be was being authorised separately to perform the
functions of the Collector and that on such authorisation he
would be competent to make the inquiry. On the same day,the
Government issued a notification under sec. 3(c) authorising
him to perform the function of the Collector within Baroda
District. But on October 11, 1963 the Government issued
another notification superseding the notification of October
1, 1963 and authorising all Special Land Acquisition
Officers in the State to perform the functions of the
Collector under the Act within the area of their respective
jurisdiction. On October 10, 1963 Master had addressed a
letter to the
602
Company to supply information for his inquiry under Rule 4.
On October 22, 1963 he issued notices to 27 owners of the
lands proposed to be acquired but only 10 of them appeared
before him and he recorded their statements on October 31,
1963. There is thus no doubt that Master was instructed by
the State Government to hold an inquiry and to submit his
report.
Rule 4 requires the Collector to make an inquiry regarding
the matters stated therein, such matters inter alia being
that the land requested by the Company for acquisition is
not excessive, that the Company has made efforts and offered
reasonable. price to buy the land from the owners, that if
the land happens to be good agricultural land, there is no
other alternative land suitable for the Company’s purpose
and the approximate amount of compensation which would be
payable if the lands were acquired. The Collector after
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making such inquiry has to submit his report to the
Government. The Government then forwards it to the Land
Acquisition Committee and the Committee has to advise the
Government. Rule 4 prohibits the Government from issuing
notification under section 6 unless it has consulted the
Committee and considered the said report as also the report
made under section 5A and unless an agreement with the
Company under section 41 has been executed.
The contention was that though Master held the inquiry and
made the report he had functioned not as the Collector but
in his capacity as the Special Land Acquisition Officer,
Baroda, and therefore the notification under sec. 4 and s. 6
were invalid. The argument was, firstly, that Rule 4 does
not define "collector" and therefore- the word "collector"
must mean the Collector of the District and secondly, that
even if Master was appointed as the Collector as defined by
sec. 3(c) his appointment as Collector was not valid as he
was not specially appointed to perform the functions of the
Collector. It was said that the notification dated October
11, 1963 did not "specially" appoint Master but was a
general notification authorising not only, Master but all
the Special Land Acquisition Officers in the State appointed
not only before the date of sec. 4 notification but also
those who would be appointed in future. In our view, these
contentions cannot be upheld. Section 3(c) defines a
Collector to mean Collector of the District and includes
Deputy Commissioner and any officer specially appointed by
the Government to perform the functions of a Collector under
the Act. Section 20 of the General Clauses Act, X of 1897
provides that where a Central Act empowers making rules, the
expressions used in such rules, if made after the
commencement of that Act shall have the same meaning as in
the Central Act, unless there is anything repugnant in the
subject or context. There being nothing repugnant in the
subject or context, the word "collector" must have the same
meaning in the rules as in sec. 3(c) which includes an
officer specially appointed to perform the functions of the
Collector. If therefore Master can be said to have.
608
been specially appointed to perform the functions of the
Collector Linder the Act no challenge can be entertained as
to his competence to make the inquiry and the report
under Rule 4 of the said Rules. Sanghi conceded that the
notification dated October 1, 1963 did "specially" appoint
Master as the Collector. Baroda but argued that as that
notification was superseded it would not avail the
respondents and therefore the question was whether the noti-
fication dated October 11, 1963 can be said to have
specially appointed Master as Collector. He argued that
since that notification appointed all the Special Land
Acquisition Officers to perform the functions of the
Collector within their respective areas the appointments
made thereunder must be regarded as general and not
appointments specially made and therefore it cannot be said
that Master or any one of them was specially appointed as
required by sec. 3(c). The argument therefore resolves
itself to what is the true meaning of the words "specially
appointed". In our view, those words simply mean that as
such an officer is not a Collector and cannot perform the
functions of a Collector under the Act, he has to be
"specially appointed", that is’ appointed for the specific
purpose of performing those functions. The word "specially’
has therefore reference to the special purpose of
appointment and is not used to convey the sense of a special
as against a general appointment. The word "specially" thus
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connotes the appointment of an officer or officers to
perform functions which ordinarily a Collector would perform
under the Act. It qualifies the word "appointed" and means
no more than that he is appointed specially to perform the
functions entrusted by the Act to the Collector. It is the
appointment therefore which is special and not the person.-
from amongst several such officers. Besides, sec. 15 of the
General Clauses Act provides that where a Central Act
empowers an authority to appoint a person to perform a
certain function, such power can be exercised either by name
or by virtue of office. There would therefore be no
objection if the appointment is made of an officer by virtue
of his office and not by his name. Therefore even if the
meaning of the word "specially" were to be that which is
canvassed by Mr. Sanghi the Government could have issued
separate notifications for each of the Sp. L.A. officers
authorising them individually to perform the functions of
the Collector within their respective area of jurisdiction.
Instead of doing that, if one notification were to be issued
authorising each of them to perform those functions there
could be no valid objection. Such a notification would have
the same force as a separate notification in respect of each
individual Sp. L.A. officer. Such a notification Would
mean that the Government thereby appoints each of the
existing Sp. L. A. officers to perform the functions of the
Collector within, their respective areas. It is true that
the notification also declares that such of the Sp. L.A.
officers as may be appointed in future are also authorised
to preform the Collector’s functions. That only means that
whenever a person would be appointed as a Sp. L.A.
604
officer for a particular area, the notification would in
effect invest him at the same time with the authority to
perform the Collector’s functions. The appointment of each
of these officers therefore must be held to be special and
not general.
But Mr. Sanghi argued that even so the notification did not
"appoint" Master but merely authorised him to perform the
Collector’s functions. In our View. the distinction is
without difference. In the context of sec. 3(c) when an
officer is authorised to perform the functions of the
Collector it means that he is appointed to perfore those
functions. The clause does not contemplate a separate or an
additional post. What it means is that some officer who is
already in the Government employment is authorised to work
as a Collector for the purposes of the Act. In this sense
whether he is appointed or authorised to perform the
Collector’s functions he would be complying with the terms
of that clause.
It was then urgued that the inquiry under Rule 4 is a quasi-
judicial inquiry and therefore it was incumbent on Master to
give an opportunity to the appellants to be heard. The Rule
however provides that the officer conducting the inquiry has
to hear the Company before making his report. Whether he
has also to hear tile owners of the land or not need not- be
decided in these appeals as Master had in fact given such an
opportunity to the appellants by serving them with notices
and recorded the statements of such of them who cared to
appear before him. There is therefore no merit in that
contention. Next it was urged that the inquiry under Rule 4
has to be held after the notification under sec. 4 is issued
and not before and therefore the inquiry held by Master was
no-, valid. We do not find anything in Rule 4 or in any
other Rule to warrant such a proposition. The inquiry, the
report to be made consequent upon such inquiry. obtaining
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the opinion of the Land Acquisition Committee, all these are
intended to enable the Government to come to a tentative
conclusion that the lands in question are or are likely to
be needed for a public purpose and to issue thereafter sec.
4 notification. In our view, no objection to the
appointment of Master to perform the functions of the
Collector under sec. 3(c) or to his competence to make the
inquiry and the report under Rule 4 or their legality can be
validly made It follows that the consent given by the State
Government for initiating acquisition proceedings was
validly given and was in compliance with the provisions of
Part VII of the Act and the State Government could validly
issue the impugned notifications. This disposes of Mr.
Sanghi’s propositions 1 and 2.
The third proposition is that the State Government exercised
the power under the Act mala fide and without applying its
mind to the facts of the case. Paragraph 10 of the petition
containing the plea as to mala fides is in general terms
without any particulars. Even such of the allegations that
are to be found there arc more against the 3rd respondent
Company than against the State Government. These are based
on the fact that the Company had
605
sufficient land of its own and the acquisition was therefore
being made so that the Company may acquire the neighbouring
lands without utilising its own lands. It is true that the
Company owns. 140 acres of land. But as the affidavit of
the Company’s officer shows out of these 140 acres 48 acres
are ravine lands, unfit as factory sites. According to the
Company, those lands however will be utilised for housing
accommodation for its 700 workmen and for amenities for them
such as play grounds, a sports club. a recreation centre and
a co-operative consumer society. Forty acres out of, the
rest of the land have already been used for constructing
some: of the factories’ warehouses and godowns. As regards
the balance: of 60 acres, they do not form a compact block
and contain in them small pockets belonging to the
appellants. The Company’s case was that unless these
pockets are acquired and these 60 acres are made, into one
compact lot it would not be possible to use them as factory
site. These lands are, besides, divided by a Nal which if
filled Lip would block access to the appellant’s lands.
Unless the enclaves are acquired. the said Nal which divides
the Company’s lands car,not be filled up. A portion of the
lands in question is also necessary for an approach road
leading to the proposed railway siding. Some of the land
will have to be kept open as otherwise the noxious fumes
omitted by the factories would prove detrimental to the:
health of the neighbours.
The documents produced by Master reveal that the inquiry,.
held by him ",as on the question whether the Company was
trying to acquire excessive land. It is therefore not
possible that the Government failed to apply its mind having
had Master’s report before it as also the report under sec.
5A as regards the extent of land needed by the Company. It
was however arzueed though somewhat vaguely that the Company
would not require as much, as 40 acres for housing its
workmen and also that the Company has its own land near the
railway lines which can well be used for the proposed
railway siding. No effort however was made to show that the
Company would not really need 40 acres for housing purposes.
As regards the proposed railway siding also there is no data
to show that the Company’s land near the railway lines would
be suitable for constructing such railway siding. The
appellant’s lands appear to be near the existing goods
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platform. It may be that the Government found on the basis
of the reports before it that the appellants’ lands near the
goods platform would be more suitable for the railway siding
than the Company’s land near the railway lines.
Mr. Sanghi then contended that the fact that the Government
had been trying to acquire these lands since 1962 and has
been issuing one notification after another shows the
exercise of the, power to acquire was mala fide. No 1 such
inference can be drawn from such a fact only. The fact, on
the other hand, that the Government cancelled its first
notification on the ground that these-
606
lands were not suitable for a fertiliser factory gives a
clear indication that it had applied its mind and relatives
the allegation of mala fide exercise of power. The
correspondence which the Company produced during the hearing
of the petitions shows that as soon as the decision in the
first Arora Case(1) was given the Government at once
cancelled the notification in spite ’of the Company’s
request to continue it. This negatives any suspicion as to
collusion between the Company and the acquiring authority.
It is true that Master’s opinion was adverse to acquisition
but the Government was not bound to accept it. However, the
fact that a responsible officer of the Government gave an
adverse opinion is yet another indication that he was acting
independently without being influenced by the Government or
the Company. In our view, the appellants failed to
establish their allegation either as to mala fide or the
non-application of mind by the State Government. The third
proposition of Mr. Sanghi therefore must fail.
As regards proposition No. 4, the only argument urged was that
when a particular land is being already used for one
public purpose, in this case the manufacture of "sagol", a
building material made from lime, the legislature could not
have intended to empower the Government to destroy that
purpose and substitute in its place another public purpose.
We need only say that a similar argument was urged in
Somavanti’s Case (2 ) and rejected by this Court.
The last proposition of Mr. Sanghi was that even though an
inquiry under s. 5A may be an administrative inquiry, the
State Government was bound to give an opportunity to be
heard to the appellants after receiving the report
thereunder and before making up its mind for the purpose of
issuing sec.6 notification. It is not in dispute that
during sec. 5A inquiry the appellants were heard and their
objections were taken on record. Under sec. 5A, the
Collector has to hear the objections of the owner. take them on r
ecord and then submit his report to the Government.
The section also requires him to send along with his report
the entire record of his inquiry which would include the
objections. The report has merely recommendatory value and
is not binding on the Government. The record has to
accompany the report as it is for the Government to form
independently its satisfaction. Both are sent to enable the
Government to form its satisfaction that the acquisition is
necessary for a public purpose or for the Company. It is
then that sec. 6 notification which declares that particular
land is needed for either of the two purposes is issued.
The Government thus bad before it not only the opinion of
Master but also all that the appellants had to say by way
of objections against the proposed acquisition. The
appellants therefore had an opportunity of
(1) [1962] Supp. 2 S.C.R. 149,
(2) [1963] 2 S.C.R. 774.
607
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being heard. Neither sec. 5A nor any other provision of the
Act lays down that a second opportunity has to be given
before the issuance of section 6 notification. This
contention also therefore cannot be sustained.
These were all the contentions urged before us. As none of
them can be upheld the appeals have to be dismissed. The
appellants will pay to the respondents the costs of these
appeals. (One hearing fee).
R.K.P.S. Appeals dismissed.
608