DOONGARSEE AND SONS Vs. STATE OF GUJARAT

JUDGEMENT

(1.) THE petitioners are owners of different pieces of land forming one compact block situate at village Vasana, City Taluka, Ahmedabad District. The third respondent society is a co -operative housing society formed with the object of enabling its members to construct houses and registered under the Bombay Co -operative Societies Act, 1925 - now deemed to be registered under the Gujarat Co -operative Societies Act, 1961. The petitioners' lands being well situate, the third respondent society moved the State Government to acquire the petitioners' lands for construction of houses by its members and the State Government accordingly issued a notification dated 20th May, 1961 under Section 4 stating inter alia that the petitioners' lands were likely to be needed for a public purpose, namely, for construction of houses for members of Shri Yogeshwar Co -operative Housing Society Ltd. Within thirty days of the issue of this notification some of the petitioners filed their objections against the proposed acquisition of their lands and the Collector after holding an inquiry made his report to the State Government under Section 5 -A, sub -section (2). The petitioners who are owners of survey Nos. 7, 8, 14 and 17, apprehending that the State Government will immediately proceed to issue a notification under Section 6 in respect of their lands thereupon filed Special Civil Application No. 564 of 1962 challenging the power of the State Government to acquire for construction of houses for members of a co -operative housing society and seeking to restrain the State Government from proceeding further under the notification dated 20th May, 1961. On the petition being admitted an interim injunction was sought but it was refused and the State Government after considering the report of the Collector under Section 5 -A, sub -section (2), issued a notification dated 29th April, 1963 under Section 6 which in so far as is material was in the following terms:

(2.) SO far as Special Civil Application No. 1100 of 1963 is concerned, the petition challenges the notification dated 29th April, 1963 but since this notification has been cancelled by the Government by the notification dated 28th April, 1966, the petition has become infructuous and does not survive. In fact this is the contention raised on behalf of the respondents in answer to the petition. B.S. Nimbalkar, Under Secretary to the Government of Gujarat, Revenue Department, states in his affidavit in reply at paragraph 5; "I say that the petition of the petitioners has become infructuous inasmuch as the Government of Gujarat has by a notification dated 28th April, 1966, bearing No. M.1491/M/LAH.1561/30027/LA.IV, published in Gujarat Government Gazette Part I (Supplement) dated 5th May, 1966 at page 2169, cancelled the earlier notification dated 29th April, 1963 which has been challenged in the petition." This petition must therefore be rejected and nothing more need be said about it.

(3.) RE . Ground (A): This ground is covered by a decision given by us this morning in Special Civil Applns. Nos. 316, 325 and 811 of 1965 (Guj). The facts giving rise to this group of petitions were similar to the facts of the present case. There was a notification dated 19th June, 1961 issued by the Government under Section 4 and this was followed by a notification dated 5th January, 1963 issued by the Government under Section 6 declaring that certain lands were needed to be acquired at the expense of Manekbag Co -operative Housing Society Ltd. for a public purpose, namely, "for a housing scheme under taken by Manekbag Co -operative Housing Society Ltd. with sanction of Government". This notification under Section 6 was subsequently cancelled by the Government by a notification dated 4th April, 1963 and the Government then issued a second notification dated 1st September, 1964 under Section 6 in respect of the same lands after passing a resolution sanctioning a contribution of Rs. 500/ - towards the cost of acquisition. The second Section 6 notification was challenged in these petitions inter alia on the ground that Section 4 notification was exhausted on issue of the first Section 6 notification and it could not thereafter support any subsequent notification under Section 6 even if the first Section 6 notification was cancelled and there was therefore no notification under Section 4 to support the second Section 6 notification. This challenge was upheld by us for reasons which we stated in the following words -