VALJI MULJI SONEJI Vs. STATE OF GUJARAT

JUDGEMENT

(1.) This petition under Art. 226 is directed against a notification dated 10th October 1967 issued by the Government of Gujarat under sec. 6 of the Land Acquisition Act 1894 The facts giving rise to the petition are material and it is necessary to set them out in some detail.

(2.) The petitioners according to their case as laid in the petition are tenants of different lands forming part of final plots Nos. 41 42 and 434 Astodia Mill Compound situate at Astodia in the city of Ahmedabad. The then Government of Bombay by a notification dated 10 October 1952 issued under sec. 4 of the Land Acquisition Act 1894 notified that final plots Nos. 41 42 and 43 were likely to be needed for a public purpose namely State Transport. The petitioners filed their objections against the proposed acquisition of their lands and after hearing the objectors the Special Land Acquisition Officer submitted his report to the then Government of Bombay under sec. 5A sub-sec. (2) of the Act. The petitioners however in the meantime filed Civil Suit No. 1262 of 1953 in the Court of the Civil Judge Senior Division at Ahmedabad for a declaration that the notification under sec. 4 issued by the then Government of Bombay was illegal and ultra vires and for a permanent injunction restraining the State of Bombay from proceeding with the acquisition of the lands in the possession of the petitioners. Immediately after filing the suit the petitioners made an application for interim injunction restraining the State of Bombay from proceeding further with the acquisition but the application was rejected and interim injunction was not granted. The then Government of Bombay thereupon proceeded to issue a notification dated 14th August 1953 under sec. 6 of the Act declaring inter alia that final plots Nos. 41 42 and 43 were required for the purpose of State Transport. There is nothing on the record to show but it does appear that on the issue of the notification under sec. 6 the petitioners amended the plaint and also included challenge to the validity of the declaration contained in sec. 6 notification. The suit was thereafter tried by the Civil Judge Senior Division Ahmedabad and the learned trial Judge by a judgment dated 20th January 1959 held that the notifications under secs. 4 and 6 impugned in the suit were valid and did not suffer from any infirmity and accordingly dismissed the suit. Two appeals were filed against the judgment of the learned trial Judge by some of the petitioners and the other by the rest of them but the appeals met with the same fate :- they were dismissed by the learned Second Extra Assistant Judge at Ahmedabad by a judgment dated 20th September 1959. The petitioners thereupon preferred a second appeal in the High Court but this appeal too was dismissed by the High Court on 1st August 1960. The petitioners however did not rest content with the dismissal of their second appeal by the High Court but with special leave preferred two appeals to the Supreme Court. These two appeals were allowed by the Supreme Court by a common judgment delivered on 8th May 1963 and the Supreme Court passed a decree in the following terms :- We therefore allow the appeals and decree the suit of the appellants with costs in all the Courts. The prayer in the suit being directed against both sec. 4 and sec. 6 notifications the effect of granting this decree was that both sec. 4 and sec. 6 notifications were declared illegal and ultra vires. But this was an obvious mistake. It is apparent from the judgment of the Supreme Court which is now reported in Valjibhai v. State of Bombay A.I.R. 1963 S. C. 1890 that the only notification struck down by the Supreme Court was that under sec. 6 and so far as sec. 4 notification was concerned far from being declared illegal and ultra vires it was sustained and the challenge to its validity was rejected. The decree passed by the Supreme Court was therefore inconsistent with its judgment and an application was accordingly made by the State of Gujarat which had come into existence in the meantime as a result of the bifurcation of the State of Bombay for speaking to the minutes of the decree with a view to bringing it in accord with the judgment. The application was made sometime in 1965 and the Supreme Court by an order dated 13th September 1965 granted the application and directed that the words and decree the suit of the appellants with costs in all the Courts be deleted and instead the following words be substituted namely and decree the suit for permanent injunction restraining the respondents from proceeding further with the land acquisition proceedings under the said notification issued under sec. 6(1) of the Act with costs in all the Courts. Sec. 4 notification thus came out unscathed and its validity was upheld by the decision of the Supreme Court. The Government of Gujarat thereafter by a resolution dated 22nd February 1966 sanctioned a nominal contribution of Re. 1/towards the cost of acquisition of lands which were proposed to be acquired under sec. 4 notification. Since several years had passed since the date of the original inquiry under sec. 5A the Additional Special Land Acquisition Officer also issued a notice dated 1st August 1966 intimating to the petitioners that if they wanted to submit any further objections over and above the objections submitted at the original inquiry under sec. 5A they could submit the same on or before 16 August 1966. The petitioners accordingly submitted further objections on 31st August 1966 and these objections were inquired into by the Additional Special Land Acquisition Officer at a personal hearing given to the petitioners which was completed on 13th April 1967. It does not appear from the record whether another report was submitted by the Additional Special Land Acquisition Officer to the Government of Gujarat but presumably it must have been submitted since a fresh inquiry was held into the further objections filed by the petitioners. The original contribution made by the Government of Gujarat to the cost of acquisition was Re. 1/as set out in the resolution dated 22nd February 1966 but during this period taken up in the fresh inquiry it was increased to Rs. 500/by another resolution dated 2nd March 1967. The Government of Gujarat thereafter issued a fresh notification dated 10th October 1967 under sec. 6 declaring infer alia that final plots Nos. 41 42 and 43 were required for the purpose specified in column 4 of the Schedule namely for construction of bus station and allied purposes by the Gujarat State Road Transport Corporation. The petitioners thereupon filed the present petition challenging the validity of this notification under sec. 6 hereinafter referred to as the impugned sec. 6 notification.

(3.) There was only one ground on which the validity of the impugned sec. 6 notification was challenged on behalf of the petitioners and it was that the impugned sec. 6 notification was issued more than fifteen years after the date of sec. 4 notification and having been issued after unreason able delay it was illegal and void. This ground rested on the premise that the notification under sec. 6 must be issued without unreasonable delay after the issue of the notification under sec. 4. We shall presently examine the validity of this premise but before we do so we might dispose of a preliminary objection raised on behalf of the respondents. The respondents urged that the petitioners might and ought to have contended before the Supreme Court in the appeal preferred by them in Suit No. 1262 of 1953 that considerable time had elapsed since the issue of sec. 4 notification and it was therefore not competent to the Government to issue a fresh notification under sec. 6 on the strength of that notification and the Government should consequently be restrained by a permanent injunction from doing so. This contention not having been raised by the petitioners in the appeal before the Supreme Court was barred on principles analogous to res judicata and the petitioners were therefore not entitled to contend in the present petition that the impugned sec. 6 notification having been issued after lapse of unreasonable time was invalid. This was the form in which the preliminary objection was formulated but we must confess our inability to comprehend it. It is a little difficult to understand how the petitioners could urge in the appeal before the Supreme Court that reasonable time since the issue of sec. 4 notification having expired the Government was not entitled to issue a fresh notification under sec. 6 on the basis of the existing sec. 4 notification. That would be a totally different cause of action based on facts arising subsequent to the suit and moreover the petitioners could not be expected to anticipate that if sec. 6 notification impugned in the appeal was struck down the Government would proceed to issue a fresh notification under sec. 6 on the basis of existing sec. 4 notification and claim relief on that footing. Besides such contention if raised would have been clearly premature for the petitioners could have no cause of action until a fresh notification was issued under sec. 6 by availing of existing sec. 4 notification. It is therefore idle to contend that the petitioners should have raised this contention in the appeal before the Supreme Court and not having done so they are precluded from urging it in the present petition. The challenge to the validity of the impugned sec. 6 notification cannot be stifled on this ground.