# ' / • KHADIM HUSSAIN v. STATE OF U.P. & OTHERS

- **Citation:** [1976] 3 S.C.R. 1
- **Court:** Supreme Court of India
- **Decided:** 1975-12-18
- **Case number:** '. Civil Appeal No. 1754 of 1974
- **Bench:** A. N. Ray, M. H. Beg, R. S. Sarkaria, P. N. Shinghal
- **Source:** https://unisonlegal.in/judgment/supreme-court-of-india/khadim-hussain-v-state-of-u-p-others-6754
- **Pages:** 11

## Headnote

U.P. Town /Jnprovement Act, 1919-Sec. 36 U.P. Avas Evarn Vikas Pari~
shad Adhi11iya1n 1966-Sec. 32(1)-Trust appointed under an earlier ActTenn of office took place under subsequent Act-If invalid-Change in the 11an1e
of the scheme-I/ invalidates.
On March 21. 1963, the trustees of the Gorakhpur Town Improvement Trust
\Vere appointed by a notification under s. 4 of the U.P. Town Improvement Act,
B
1919. The Trust notified a Housing Scheme on March 13, 1965, under s. 36.
c·
The 1919 Act was repealed by the U.P. Avas Evam Vikas Parishad Adhiniyam,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
1966 Act.
.
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 (i) that the trust was never properly constituted because the commencement of the terms of office of
first
D'
trustees took place only after the repeal of the 1919 Act; (ii) that, the scheme.
~is 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,
11894, was invalid because it v.:as not published within two years after the commencement of the Land Acquisition (Amendment and Validation) Act. 1967.
Dismissing the appeal,
E
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-EJ
(b) A Trust dq.ly 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
F.
commencement of offi.ce
1 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-GJ
( c) The wholc1 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
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
Ootification 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 notificaMon which was really a corollary of
a notification under s. 4(2) took place so late ·when the three years' period of
tion proceedings.
[IOG-H; llB-C]
(d) Even, assuming that the date of the coming into force of the 1966-Act
\Vas 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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[1976] 3 S.C.R.
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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]
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(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. \Vas altered
sd 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 h\'O supposedly
separate and different schemes. 'The scheme had been referred to by _the san1e
n

## Text

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KHADIM HUSSAIN
v.
STATE OF U.P. & OTHERS
'December 18, 1975
I
[A. N. RAY, C.J., M. H. BEG, R. S. SARKARIA AND P. N. SHINGHAL, JJ.]
U.P. Town /Jnprovement Act, 1919-Sec. 36 U.P. Avas Evarn Vikas Pari~
shad Adhi11iya1n 1966-Sec. 32(1)-Trust appointed under an earlier ActTenn of office took place under subsequent Act-If invalid-Change in the 11an1e
of the scheme-I/ invalidates.
On March 21. 1963, the trustees of the Gorakhpur Town Improvement Trust
\Vere appointed by a notification under s. 4 of the U.P. Town Improvement Act,
B
1919. The Trust notified a Housing Scheme on March 13, 1965, under s. 36.
c·
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
1966 Act.
.
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 (i) that the trust was never properly constituted because the commencement of the terms of office of
first
D'
trustees took place only after the repeal of the 1919 Act; (ii) that, the scheme.
~is 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,
11894, was invalid because it v.:as not published within two years after the commencement of the Land Acquisition (Amendment and Validation) Act. 1967.
Dismissing the appeal,
E
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-EJ
(b) A Trust dq.ly 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
F.
commencement of offi.ce
1 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-GJ
( c) The wholc1 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
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
Ootification 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 notificaMon which was really a corollary of
a notification under s. 4(2) took place so late ·when the three years' period of
tion proceedings.
[IOG-H; llB-C]
(d) Even, assuming that the date of the coming into force of the 1966-Act
\Vas 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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[1976] 3 S.C.R.
A
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]
c
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(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. \Vas altered
sd 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 h\'O supposedly
separate and different schemes. 'The scheme had been referred to by _the san1e
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-GJ
(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 \\'as to operate as conclusive evidence to show that this \Vas so.
The
conclusiveness of this declaration could not be questioned anywhere if the procedure dealing with its rnaking has been observed. f!OD-EJ
(b) Under s. 4(2) of the Land Acquisition (Amendment and Validation)
Act, 1967, it is the declaration which has to take place within tv,ro years of the
expiry of the co1nn1encement of the Ordinance. lf an unreason<1ble delay bet-
\Veen declar.ation and its notification is shown to exist it may raise a suspicion
about the existence of the declaration itself or about the bona {ides of acquisition proce:dings. [lOG-H; llB-C]
In the instant case neither the existence nor the bona {ides of the declaration
had been questioned. The appellant had neither asserted nor shown th~t no declaration was tnade vvithin the period of time fixed for it. [l lC-D]
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
E
in Civil Misc.
Writ No. 28,30 of 1970)
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D. V. Patel, B. P. Singh, for the appellant
J. P. Goyal and Shreepal Singh, for respondents 2-3.
G. N. Diksliit and 0. 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
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. Avas Evam
Vikas Parisliad 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
1st
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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KHADIM HUSSAIN V. U.P. STATE (Beg, J.)
3
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 su&tainable, 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
Validation) Act of 1967.
With regard to the l st objection the relevant provisions placed
before us are Sections 4 and 8 of the Act of 1919.
They are:
0 "4. Constitution of Trust.-(!) 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 othe persons
other places.
(2) The Chairman and the persons referred
( d) of sub-section (I), shall be appointed
Government by notification.
( 3) The Chairman of the Municipal
Board
Trustee ex-officio .
(4) & (5) repealed.
to in clause
by the State
shall
be a
(6) Of the persons referred to in clause (d) of sub-section
(I) not more than one shall be a person in the service
of the Government".
8. Commencement of term of office of first Trustees.-
( I) 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".
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Section I, sub.s. (3) says :
HI
"! (3) This section and section 66 shall come into force
at once. The State Government may, by notification
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[1976) 3 S.C.R.
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 he 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
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:
·C
"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 sucli board shall be a body corporate and have perpetual succession and a common
D
sea·!, and shall by the said name sue and be sued".
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We have already set out Section 4 above.
Section 5 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 time7. Term of office of other Trustees.-Subject to the foregoing provisons 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
fuiance.
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:
"100. Validation of acts and proceedings.-(1) No act done
or proceeding taken nnder 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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KHADIM HUSSAIN V. U.P. STATE (Beg, J.)
(b) any person having ceased to be a trnstee; or
(c)
(d)
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
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 (I) of Section 13, shall be
taken to have been duly convened and to be free from
all defect and irregularity".
5
It is not denied that the Improvement Trnst of Gorakhpur had
been actually working under the above mentioned provisions of the
Act of 1919.
We think that Section I 00 of the Act of 1919, in the
context of the whole Act, completely refutes the argument based upon
a specious distinction between appointmeht 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 conA
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fined to the commencement of the "term" by which is meant the duraG
tio~ 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 determine the date of commencement of their term in order to fix the date
of its expiry so as to enable fresh appointments to he made in time.
Assuming that the Gorakhpur improvement Trust was first constituted
in 1963, there is no provision indicating that the constitution of the
H
trus~ was not complete as soon as it was declared by statute and
a
Chau:man and trustees took charge gf their offices by reason of their
appomtment as trustees.
This had been done by the
notification
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SUPREME COURT REPORTS
[1976] 3 S.C.R.
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 first trustees drew near. This
explains wl}y 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 lo 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 Secti0n 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 Sc heme before us.
Coming to the second objection. we find that the
only
grounrl
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 Jays 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
tl1e
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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KHADIM HUSSAIN v. u.P. STATE (Beg, J.)
7
was transferred to it, in accordance with the corresponding
A '
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) 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
fraI):ied, 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 Chainnan 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
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the State Government, acquire land under the provisions of
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the Land A,cquisition Act, 1894, as modified by the provisions of this Act, for carrying out any of the purposes of this
Act''.
2-L3%5CI/76
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[1976] 3 S.C.R.
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 Jays down :
.
"2. Notification under Section 4 and declaration under
Section 6 to be replaced by notifications under Sections 36
and 4 2 of this Act.-
ll) 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 nnder Section 6 of
the said Act, unless a declaration under the last mentioned
section has previously been made and is still in force".
Section 97 of the Adhiniyam, already set out above, applies the
corresponding provisions of the Adhiniyam of 1966 to proceedings
begun nnder 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 Acauisition 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
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, when 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 unde.r 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 rcpealcci Act as
well as under Section 55 of the Adhiniyam of 1966 takes
place
expressly "under" the Land Acquisition Act of
1894.
This
may
weJJ 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 1l1i,1k 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
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KHADIM HUSSAIN v. u.P. STATE (Beg, !.)
9
on the assumption that the Land Acquisition Act, as amended in
1967, was applicable here.
A
Section 4(2) of the Land Acquisition (Amendment and Validation) Act 1967, Jays 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 bas been
notif!ed before the c.ommencement 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
Or_\linance".
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,
196S, the "declaration" under Section 6 bad 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 :
"6 ( 1) Subject to the provisions of Part VII of this Act,
when the appropriate Gove=ent is satisfied, after considering the report, if any, made under Section
SA,
subsection (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 bas or have
been made (wherever required) under Section SA, subsection (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,
B
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F
G
H
JO
SUPREME COURT REPORTS
(1976] 3 S.C.R.
A
19Q.7, shall be made after the expiry of three years from the
date of such publication :
B
c
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 Otli-
- cial 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
thai the land is needed for a public purpose or for a Com-
)
pany, as the case may be; and, after making such declarai.
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tion, 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 notificatiorr 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 argued on behalf of
the appellant that the declaration under Sectiorr
6
was
similariy
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 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
•
KHADIM HUSSAIN V, U.P. STATE (Beg, /.)
11
made within the prescribed time, it was his duty to prove it.
He has
not discharged that onus.
A
As indicated by the Diyision 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), ho.iding successive notifications, under Section 6,
with excessive intervening delay between a notification under SecB
tion 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 {ides of
acquisition proceedings.
This, however, is not the position in the
C
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 within the period of time fixed for it. We, therefore,_reject the last objection also.
Consequently, we dismiss this appeal, but, in the circumstances
Df the case, we make no order as to costs.
P.B.R.
Appeal dis'!zissed.
(1)
[1966] 3 $.C.R. 557.
D