# VUAY COTTON & OIL MILLS LTD v. THE STATE OF GUJARAT

- **Citation:** [1969] 2 S.C.R. 60
- **Court:** Supreme Court of India
- **Decided:** 1968-09-11
- **Source:** https://unisonlegal.in/judgment/supreme-court-of-india/vuay-cotton-oil-mills-ltd-v-the-state-of-gujarat-4572
- **Pages:** 5

## Headnote

VUAY COTTON & OIL MILLS LTD.
v.
THE STATE OF GUJARAT
September 11, 1968
rs. M. S!KRI, R. s. BACfu\WAT AND K. s. HEGDE, JJ.]
Land Acquisition Act, 1894, ss. 4(1) and 6(1)-Declarations underCircumstances in which a decwration only under s. 6(1) may be treated
as a composite declaration under SS. 4(1) and 6(1).
A
B •
In 1949 the Government took possession of certain land belonging to
the appellant under an arrangement whereby the Government was to
C
give to the appellant in exchange other suitable lands of equal value.
After the Government had constructed some buildings on the land, it
<lecided to acquire the land compulsorily. On February l, 1959, the
Government issued a notification under s. 6(1) of the Land Acquisition
Act, 1894, declaring that the land was needed. for public purposes and
stating that possession of the land had already been taken. The Collector made an award on April 22, 1957 but the appellant objected to the
amount of compensation and the Collector, on his application, made a
D
reference to the Court under s. 18. At the hearing of the reference before
the District Judge, the Government conc~ded that the appellant was entitled to the market value of the land as on February 1, 1955 and the
District Judge awarded compensation accordingly. Thereafter the Gov·
ernment filed an appeal in the High Court and contended that in the
absence of a notification under s.
4(1); no compensation could be
awarded to the appellant.
The Hizh Court allowed the appeal and set
.aside the order of the District Judge.
E
On appeal to this Court,
HELD : Allowing the appeal :
The Government having constructed buildings on the land was not in
.a position to restore it and had no option bnt to acquire it compulsorily.
With a view to make the acquisition the Government published a notili·
cation under sec. 6(1) on February 1, 1955. On linding that therei was
no separate notification under sec. 4(1) the Government had a choice
between two courses. It could say that in the absence of such a notifi·
cation the acquisition was invalid and that no compensation could be
awarded under sec. 23. If it did so it would be compelled to start fresh
acquisition proceedings and pay a 1arger sum by way of compensation. ,
The other course was to treat the notification of February 1, 1955 as a
composite one under sections 4(1) and 6(1) with the consent of the
appellant and to say that the market value of the land on that day could
be awarded by way of compensation. 'The Government elected to choose
the fatter course and the appellant agreed to accept compensation on that
footing.
Having regard to the consent of both parties, it could properly
be assumed that the procedure of s. 5A bad been waived by the appellant
and that the notification of February 1, 1955 could be treated as a compo-
•ite one under ss. 4(1) and 6(1). The District Judge could therefore lawfully award the market value of the land on that day. [63 C·G]
Somavanti v. State of Puniab.
[1963] 2 S.C.R.
775, 821-823
and
Toronto Corpr. v. Russell, [1908] A.C. 493; referred to.
F
G
H
•
...
•
A
B
c
D
E
..,
F
G
H
VIJAY MILLS v. GUJARAT (Bachawat, !.)
61
Furthermore, relying on the concession made by the Government
the appellant had acted to its detriment in that it did not challenge the
acquisition and the Government had come to be in adverse possession
of the land for more than 12 years. In these circumstances the Government could not be permitted to resile from the election which it dellberately made and to say that the appe.Jlant was not entitled to the market
value of the land on February 1, 1955. [63 G-H]
Rama Charan C!zakrabarty v. Nimai Monda/, 15 C.L.J. 58; referred to.
CrvrL APPELLATE JURISDICTION : Civil Appeal No. 1948 of
1966.
Appeal from the judgment and decree dated March 22, 1965
of the Gujarat High Court in First Appeal No. 718 of 1960.
Purshottam Trikamdas, M. H. Chhatrapati and A. K. Varma,
for the appellant.
G. L. Sanghi, Urmila Kapur and S. P. Nayar, for the respondent.

## Text

VUAY COTTON & OIL MILLS LTD.
v.
THE STATE OF GUJARAT
September 11, 1968
rs. M. S!KRI, R. s. BACfu\WAT AND K. s. HEGDE, JJ.]
Land Acquisition Act, 1894, ss. 4(1) and 6(1)-Declarations underCircumstances in which a decwration only under s. 6(1) may be treated
as a composite declaration under SS. 4(1) and 6(1).
A
B •
In 1949 the Government took possession of certain land belonging to
the appellant under an arrangement whereby the Government was to
C
give to the appellant in exchange other suitable lands of equal value.
After the Government had constructed some buildings on the land, it
<lecided to acquire the land compulsorily. On February l, 1959, the
Government issued a notification under s. 6(1) of the Land Acquisition
Act, 1894, declaring that the land was needed. for public purposes and
stating that possession of the land had already been taken. The Collector made an award on April 22, 1957 but the appellant objected to the
amount of compensation and the Collector, on his application, made a
D
reference to the Court under s. 18. At the hearing of the reference before
the District Judge, the Government conc~ded that the appellant was entitled to the market value of the land as on February 1, 1955 and the
District Judge awarded compensation accordingly. Thereafter the Gov·
ernment filed an appeal in the High Court and contended that in the
absence of a notification under s.
4(1); no compensation could be
awarded to the appellant.
The Hizh Court allowed the appeal and set
.aside the order of the District Judge.
E
On appeal to this Court,
HELD : Allowing the appeal :
The Government having constructed buildings on the land was not in
.a position to restore it and had no option bnt to acquire it compulsorily.
With a view to make the acquisition the Government published a notili·
cation under sec. 6(1) on February 1, 1955. On linding that therei was
no separate notification under sec. 4(1) the Government had a choice
between two courses. It could say that in the absence of such a notifi·
cation the acquisition was invalid and that no compensation could be
awarded under sec. 23. If it did so it would be compelled to start fresh
acquisition proceedings and pay a 1arger sum by way of compensation. ,
The other course was to treat the notification of February 1, 1955 as a
composite one under sections 4(1) and 6(1) with the consent of the
appellant and to say that the market value of the land on that day could
be awarded by way of compensation. 'The Government elected to choose
the fatter course and the appellant agreed to accept compensation on that
footing.
Having regard to the consent of both parties, it could properly
be assumed that the procedure of s. 5A bad been waived by the appellant
and that the notification of February 1, 1955 could be treated as a compo-
•ite one under ss. 4(1) and 6(1). The District Judge could therefore lawfully award the market value of the land on that day. [63 C·G]
Somavanti v. State of Puniab.
[1963] 2 S.C.R.
775, 821-823
and
Toronto Corpr. v. Russell, [1908] A.C. 493; referred to.
F
G
H
•
...
•
A
B
c
D
E
..,
F
G
H
VIJAY MILLS v. GUJARAT (Bachawat, !.)
61
Furthermore, relying on the concession made by the Government
the appellant had acted to its detriment in that it did not challenge the
acquisition and the Government had come to be in adverse possession
of the land for more than 12 years. In these circumstances the Government could not be permitted to resile from the election which it dellberately made and to say that the appe.Jlant was not entitled to the market
value of the land on February 1, 1955. [63 G-H]
Rama Charan C!zakrabarty v. Nimai Monda/, 15 C.L.J. 58; referred to.
CrvrL APPELLATE JURISDICTION : Civil Appeal No. 1948 of
1966.
Appeal from the judgment and decree dated March 22, 1965
of the Gujarat High Court in First Appeal No. 718 of 1960.
Purshottam Trikamdas, M. H. Chhatrapati and A. K. Varma,
for the appellant.
G. L. Sanghi, Urmila Kapur and S. P. Nayar, for the respondent.
The Judgment of the Court was delivered by
Bachawat, J.
The appellant was the owner of land bearing
survey No. 910 situated on the Bhachau-Rahapur Road in Kutch
District. In November 1949 the Government of Kutch took
possession of the land under an arrangement that the Government would give to the appellant in exchange other suitable lands
of equal value. On that date Kutch was part of the territory of
India and the Land Acquisition Act, 18 94 was in force there.
After taking possession of the land the Government constructed
thereon the State Guest House and the Court House.
Thereafter
the Government was neither willing to return the land nor to give
other suitable land in exchange and instead it decided to acquire
the land compulsorily.
On February l, 1955 the Government
issued a notification under sec. 6 (1) of the Land Acquisition Act
declaring that the land was needed for public purposes stating
that possession of the land had already been taken over and
directing the Collector to take action under sec. 7. The necessary
action was duly taken and in due course the Collector made his
award on April 22, 1957. The appellant objected to the amount
of compensation and asked the Collector to make a reference to
the Court under sec. 18.
The Collector duly made the reference.
At the hearing of the reference before the District Judge,
Kutch, the Government conceded that the appellant was entitled
to the market value of the land as on February 1, 1955. The
District Judge awarded compensation accordingly.
The Government filed an appeal in the High Court.
At the hearing of the
appeal the Government contended that in the absence of a notification under sec. 4(1), no compensation could be awarded to the
appellant. The High Court accepted the contention and observed
that the appellant would be at liberty to contend in other proceed-
(:)2
SUPREME COURT REPORTS
[1969] 2 S.C.R.
ings that the acquisition was bad in the absence of a notification
A
under sec. 4 (1). In this view of the matter the High Court
allowed the appeal and set aside the order of the District Judge.
The present appeal has been filed after obtaining a certificate from
the High Court.
The main question arising in this appeal is whether the Government can take up inconsistent positions in Court at successive
stages of the same litigation to the detriment of its opponent and
whether having conceded before the District Judge that the appellant was entitled to the market value of the land on February l,
l 9SS it could at the appellate stage resile from that position and
contend that there was no notification under sec. 4 ( 1) on that
date and that consequently its opponent was not entitled to any
compensation.
The scheme of the Land Acquisition Act is well-known. If
the Govermnent desires to acquire land, it has to issue a preliminary notification under sec. 4 (1) declaring that the land is needed
or is likely to be needed for any public purpose. . This notification has to be issued in order to give an opportunity to all persons
interested in the land under s. SA( l) to object to the acquisition
within 30 days after the issue of the notification. After hearing
the objections the Collector has to make a report under sec. SA(2).
On considering this report the Government may issue a notification under sec. 6 (1) declaring that the land is needed for a public purpose.
In cases covered by sec. 17 ( 4) the Government
may direct that the provisions of sec. SA shall not apply and if it
does so a declaration may be made under sec. 6 (1) at any time
after the publication of the notification under sec. 4 (l). When
the Collector has made an award under sec. 11, he may under
sec. 16 take possession of the land which thereupon vests in the
Government.
Section 18 requires the Collector to make a reference to Court on the application of any person interested in the
land who has not accepted the award. It is the market value of
the land at the date of the publication of the notification under
sec. 4 ( 1) that can be awarded as compensation by the Collector
under sec. 11 and by the Court under sec. 23. These provisions
show that the issue of the notification under sec. 4 ( 1) is a condition precedent to the acquisition of the land.
Where the procedure under sec. SA has to be followed!, there must necessarily be
an interval of time between the issue of the notification under sec.
4( 1) and the notification under sec. 6 ( 1). But where sec. SA
does not stand in the way, the prior publication of a notification
under sec. 4(1) is not a condition precedent to the publication
of a notification under sec. 6(1). For this reason this Court held
in Somavanti v. State of Punjab(') that where an order was passed
(I) [1963] 2, S.C.R. 775, 821-823.
B
c
D
E
F
G
H
,.
(
N
•
•
I
(
A
B
c
D
E
F
G
H
VIJAY MILLS v. GUJARAT (Bachawat, J.)
53
under sec. 17 ( 4) dispensing with the procedure under sec. SA, it
was lawful for the Government to publish both the notifications
on the same date.
·
The procedure under sec. SA being entirely for the benefit of
the persons interested in the land they may waive it, see Toronto
Corpr. v. Russel('). As stated in Halsbury's Laws of England,
3rd ed., Vol. 36, p. 444 : "A statutory right which is grarited as
a privilege may be waived either altogether or in a particular
case." If all persons interested in the land waive the benefit of
the procedure under sec. SA the Government may lawfully issue
a composite notification under secs. 4 ( 1) and 6 (1).
In this background let us examine the facts of the present
case.
The Government having constructed buildings on the land
was not in a position to restore it and had' no option but to acquire
it compulsorily.
With a view to make the acquisition the Government published a notification under sec. 6 ( 1) on February 1,
19SS. On finding that there was no separate notification under
sec. 4 ( 1) the Government had a choice between two courses of
conduct. It could say that in the absence of such a notification
the acquisition was invalid and that no compensation could be
awarded under sec. 23. If it did so it would be compelled to
start fresh acquisition proceedings and pay a larger sum by way of
compensation.
The other course was to treat the notification of
February l, 19SS as a composite one under secs. 4(1) and 6(1)
with the consent of the appellant and to say that the market value
of the land on that day could be awarded by way of compensation.
The Government elected to choose the latter course.
A't
the hearing of the reference, it conceded that the appellant was
entitled to the market value of the land on February l, 19SS. The
appellant agreed to accept compensation on that footing.
Having
regard to the consent of both parties, it could properly be assumed that the procedure of s. SA had been waived by the appellant
and that the notification of February 1, 19SS could be treated as
a composite one under ss. 4(1) and 6(1). The District Judge
could therefore lawfully award the market value of the land on
that day.
Relying on the concession made by the Government,
the appellant acted to its detriment. It did not challenge the
acquisition and took no steps to recover the land. The result is
that the Government has been in adverse possession of the land
for more than 12 years since 1949 and has gained an advantage
which it could not otherwise obtain.
In these circumstances the
Government cannot be permitted to resile from the election which
it deliberately made and to say that the appellant is not entitled
to the market value of the land on February 1, 195S. A party
. litigant cannot be permitted to take up inconsistent positions in
(1) (1908] A.C. 493.
64
SUPREME COURT REPORTS
[1969] 2 S.C.R.
Court to the deteriment of his opponents [see Rama Charan ChaA
krabarty v. Nimai Mondal('), Bigelow on Estoppel, 6th ed.,
page 783]. He cannot approbate or reprobate (see
Halsbury's
Laws of England, 3rd, ed., vol. 15 art. 340). The concession
cannot now be retracted.
The High Court should have disposed
of the appeal before it on the footing that the appellant is entitled
to the market value of the land on February 1, 1955. As the
B
High Court did not hear the appeal on the merits, the matter must
be remanded to it for final disposal.
In the result, the appeal is allowed, the order of the High
Court is set aside and the matter is remanded to the High Court
for disposal on the merits.
The respondent shall pay to the appellant the costs of the appeal in this Court.
C
R.K.P.S.
Appeal allowed.
(I) 15 C.L.J. 58.
•
...
'
•
\