Holding

Sections 4 and 6 of the Land Acquisition Act, 1894 are valid, and section 126 of the Bombay Land Revenue Code does not impose a pre‑acquisition requirement; the acquisition for village extension remains lawful and the public purpose has not been exhausted.

Summary

The appellant owned land on the banks of the Tapti River that the State of Gujarat sought to acquire under the Land Acquisition Act, 1894 for extending the village of Bhairav to house twelve families displaced by floods. After objections were filed, a preliminary notification under s.4 and a final acquisition order under s.6 were issued, which the appellant challenged on constitutional grounds and on the basis of the Bombay Land Revenue Code, 1879. The Supreme Court held that the challenge to the constitutionality of s.4 and s.6 was no longer viable, citing Manubhai Jehtalal Patel v. State of Gujarat. It further ruled that section 126 of the Bombay Land Revenue Code merely governs the limits of village sites and does not require a prior determination of insufficiency before acquisition. The Court found that the Land Acquisition Officer’s assessment of suitability was proper, the appellant offered no specific alternative lands, and the delay caused by his own litigation did not extinguish the public purpose. Consequently, the appeal was dismissed with costs.

Issues considered

Whether sections 4 and 6 of the Land Acquisition Act, 1894 are ultra vires the Constitution of India.
Whether the Bombay Land Revenue Code, 1879, section 126 obliges the Collector or Survey Officer to first determine the insufficiency of the existing village site before land can be acquired for its enlargement.
Whether the failure to consider alternative lands suitable for the public purpose invalidates the acquisition.
Whether a delay in the acquisition process defeats the existence of the public purpose.

Legislation cited

Bombay Land Revenue Code, 1879s. 126
Constitution of Indias. 133(1)(c)
Land Acquisition Act, 1894s. 4, s. 6, s. 9
Madhya Pradesh Land Revenue Codes. 226

Subjects

Land acquisitionPublic purposeConstitutional validitySection 4Section 6Bombay Land Revenue CodeVillage extensionFlood rehabilitationDelay in acquisition

Judgment

A RAMGIR lTITAMGIR GOSWAMI
v.
STATE OF GUJARAT & ANR.
i::.tj·;
JANUARY 20, 1988
.!..-· '• '
B [G.L. OZA AND M.H. KANIA, JJ.]

Land Acquisition Act, 1894: Sections 4 and 6-lntra vires '
Constitution of India 1950-Land-Acquisition of-Enlargement of
village site to house families rendered homeless by floods-Collector/
·Survey Officer/ Revenue Aut~ority-Whether must first decide on ques-
C tion regarding enlargement of site-Suitability of land-Assessment
of-To be decided by Land Acquisition Officer-Whether plea of
exhaustion of 'public purpose' on account of delay in acquisition
tenable. · '

D ..· Bombay Land Revenue Code, 1879: Section 126-Limits of sites
of villages, towns and cities-Collector/Survey Officer-'-Not necessarily
to first decide question to enlarge or. vary site before resorting· to
'·..
acqu1S1tzon. ·- ·', . . .. . ·•

The lands of the appellant were situated on the banks of the river
Tapti known for its frequent floods. They were sought to be acquired
'y
E under' the Land Acquisition Act, 1894. The preliminary notification
declaring the intention to acquire the said land was issued under s. 4 of --..../
the act and published in the Government Gazette on April 30, 1970. It
was notified that the proposed acquisition was for the public purpose
for extension of the village site for the purpose of housing 12 families
who had been rendered homeless because of floods in the Tapti river. \.. ,,.
F An individual notice under s. 4 of the Act was served on the Appellant "T°.
on May 2, 1970. He filed his objections against the proposed acquisition
on May 12, 1970 and filed additional objections on June 20, 1970 and
July 6, 1970 respectively. After the consideration and rejection of the
s:
said objections, the notification of the lands under 6 was issued on
December 8, 1970. Notices under s. 9 were issued on January 8, 1971.
G
The appellant challenged the'~foresaid acquisition i~ a writ peti-
tion in the High Court on various grounds, the main ground being that
the provisions of ss. 4 and 6 of the Act were ultra vires the Constitution. "(
The High Court dismissed the petition, but granted a certificate of
H fitness under Article l33(l)(c) oftbe Constitution.

776
R.U. GOSWAMI v. STATE OF GUJARAT 777

l In the appeal to this Court on behalf of the appellant it was A
conceded: ( l) that the vires of sections 4 and 6 could no longer be called
r in question, hut it was submitted that ( 1) under the provisions of the
Bombay Land Revenue Code, 1879 it must be established that the lands
in the existing village site are insufficient for the extension of the village
site before any acquisition can be resorted to, (2) the land acquisition
8
authorities had failed to consider what were the other lands available
;A which could have been more conveniently acquired, and (3) since
several years have passed from the date of the Notification under s. 4,

- ' the victims of the floods must have been housed and rehabilitated else-
where and hence the public purpose for which the lands were sought
' ( to be acquired does not survive.
c
Dismissing the Appeal the Court,

HELD: l. The challenge to the vires of sections 4 and 6 of the
Land Acquisition Act, 1894 no longer survive in view of the validity of
the sections having been upheld by this Court in Manubhai Jehtalal Patel
and Anr. v. State of Gujarat and others, 1983 4 sec 553. l778FI D

2. Section 126 of the Botnbay Laud Revenue Code merely deals
with the limits of the site of any village, town or city and prescribes the
procedure for fixing the limits of such sites. There is nothing in the
Bombay Land Revenue Code or the Land Acquisition Act which would
suggest that before acquisition can be resorted to for enlarging a village E
site, the Collector or a Survey Officer or Revenue Authority must
decide upon such enlargement. [78JE-FI

~ Chandrabhagabai Udhaorao and others v. Commissioner,
~Nagpur Division, Nagpur & Ors., [19621 Nagpur Law Journal, Vol.
- XLV at p. 466 and Sitaram Maroti v. State of Maharashtra, 11963] 65 F
r Bombay Law Reporter, 241 distinguished.

3. The assessment of suitability of the land proposed to be
acquired for the concerned public purpose is primarily for the Land
Acquisition Officer to consider, and no good reason has been shown on
behalf of the appellant which could warrant interference with his deci- G
sion. Moreover, the appellant had not even given proper particulars of
the other lands which, according to him, were available and were more
suitable for acquisition and hence he can make no grievance on the
score of proper consideration not having been given to the question of
acquiring such lands. [782BC-D I
H
778 SUPREME COURT REPORTS [1988) 2 S.C.R.

A
4. The delay in the acquisition has taken place on account of the
legal proceedings adopted by the Appellant himself and by reason of the
interim orders obtained by him. He caunot take advantage of this delay
and claim that the public purpose no longer survives. Moreover, the
public purpose stated in the Notification is the extension of a village site
or goathan of the village Bhairav and there is nothing to show that the
B public purpose has exhausted itself. In fact, on account of increasing
population, it would be more necessary today that the village site should
be extended even then it was at the time when the notifcation was ~
issued. [782E-F) ...

CIVIL APPELLATE JURISDICTION: Civil Appeal No. 2720
of 1972. )'
-
c I

From the Judgment and Order dated 29/30-8-72 of the Gujarat
High Court in Special Civil Appeal No. 315 of 1971.
'r--
Ji
T. U. Mehta and M.N. Goswami for the Appellant.
D
Vimal Dave, M.N. Shroff and KMM Khan for the Respondents. )<-

E
The Judgment of the Court was delivered by

KANIA, J. This is an Appeal against the judgment of a Division
Bench of the Gujarat High Court dismissing a writ petition filed by the -4-
'
Appellant herein. The Appeal has been filed on a certificate of fitness
granted by the Gujarat High Court under Article 133(1)(c) of the ,...
Constitution.
I
The main challenge in the writ petition was to the vires of sec-
F tions 4 and 6 respectively of the Land Acquisition Act, 1894. Tha~
challenge no longer survives in view of the validity of the sections •__ ,
having been upheld by this Court in Manubhai Jehtalal Patel and Anr.
v. State of Gujarat and others, [1983) 4 S.C.C. 553. The lands in ques-'
tion are situated at village Bhairav, Talulrn Kamrege, District Surat,
Gujarat. The said lands are situated on the bank of the river Tapti
G which is known for its frequent floods and the lands are covered in
Survey No. 2. The said lands admeasure 1 acre and 39 gunthas. We
propose to refer to the said lands in the aggregate as "the said land".
The said land is also known as the "Maksheshwar Mahadev Land". The
Appellant claims to be the occupant and owner of the entire land
comprising in Survey No. 2 which includes the said land. It may be
H mentioned that the claim of the Appellant to be the owner and
R.U. GOSWAMI v. STAIB OF GUJARAT !KANIA, J.] 779

~ occupier of the said land is based on his being the senior member of his A
family but we are not concerned with that question as we propose to
\ proceed on the footing that he is in actual occupation of the said land.
The preliminary notification declaring the intention to acquire the said
I.and was issued under section 4 of the Land Acquisition Act, 1894 and
published in the Government Gazette of the State of Gujarat on April
30, 1970. It was notified that the proposed acquisition was for a public B
f purpose, namely, for extension of the village site of the village
Bhairav. It is common ground that the extension of the village site was
required for the purpose of housing 12 families who had been rendered
homeless because of floods in Tapti river. An individual notice under
'•"section 4 of the Land Acquisition Act was served on the Appellant on
\ May 2, 1970. The Appellant filed his objections against the proposed C
--J acquisition on May 12, 1970 and filed additional objections on June 20,
1970 and July 6, 1970 respectively. After consideration and rejection
of the said objections, the notification for acquisition of the lands
under section 6 of the Land Acquisition Act was issued on December
8, 1970. Notices under section 9 of the Land Acquisition Act were
-7
issued on January 8, 1971. The said acquisition was challenged by the D
Appellant in the writ petition on various grounds.

The main ground on which the said acquisition was challenged in
the writ petition was that the provisions of sections 4 and 6 respectively
of the Land Acquisition Act were ultra vires the Constitution of India.
That challenge, as we have already pointed out, has been finally E
.. negatived by this Court. In view of this, Mr. Mehta fairly conceded
that the vires of sections 4 and 6 of the Land Acquisition Act could no
longer be called in question before us. It was, however, pointed out by
him that the said notification was also challenged on some other
.mnds. F

~ It was contended by Mr. Mehta that under the provisions of the
Bombay Land Revenue Code, 1879, it must be established that the
lands in the existing village site are insufficient for the extension of the
village site before any acquisition can be resorted to. It was submitted
.., by Mr. Mehta that before the said land could be acquired for the
aforestated public purpose, the revenue authorities should have G
-".,. satisfied themselves that there were no unoccupied lands in the village
r which were suitable, appropriate and available for the extension of the
village site or abadi and since that has not been done, the acquisition
could not said to be for a public purpose. Mr. Mehta sought support
for these submissions from the decision of a Division Bench of the
Nagpur Bench of the Bombay High Court in Chandrabhagabai Undha- H
780 SUPREME COURT REPORTS [i988] 2 S.C.R.

orao and others v. Commissioner, Nagpur Division, Nagpur & Ors.,
·A (1962] Nagpur Law Journal, Vol. XLV at p. 466. It was he.· ,;,1 that
case that the provisions of section 226 of the Madhya ·-::. c 1~. Land
Revenue Code require that the Deputy Commissione1 .:.!lifl;:; District
or any other person authorised under law by him must record a finding
that the village abadi is insufficient and that there is no other unoc-
B· cupied land suitable for the purpose of extension of the village abadi
before land could be compulsorily acquired for that purpose. The
decision as to the sufficiency or otherwise of the land in the abadi must
be taken by the Deputy Commissioner. The Land Acquisition Officer
cannot substitute his opinion for that of the Deputy Commissioner in
purporting to comply with the provisions of section 226. Reliance was
also placed by Mr. Mehta on the decision of a Division Bench
C · (Nagpur) of the Bombay High Court, in Sitaram Maroti v. State of
Maharashtra, (1963] 65 Bombay Law Reporter, 241 which is to the
same effect as the aforesaid decision and, in fact, follows it. It was
submitted by Mr. Mehta that the provisions of section 226 of the
Madhya Pradesh Land Revenue Code were substantially similar to the
D provisions of section 126 of the Bombay Land Revenue Code which is
really the provision applicable to the lands in question before us. We
are totally unable to accept the submission of Mr. Mehta that the y
provisions referred to above are in pari materia. ·

Section 226 of the Madhya Pradesh Land Revenue Code pro-
E . \ides as follows:

"226. (1) Wh_ere the area reserved for abadi is in the opi-
nion of the Deputy Commissioner insufficient, he may re-
serve such further area from the unoccupied land in the
village as he may think fit.
F
(2) Where unoccupied land for purposes of abadi is not
available, the State Government may acquire any land for
the extension of abadi and the Deputy Commissioner shall
dispose of such land on such terms and conditions as may
be prescribed. !'
G
·(3) The provisions of the Land Acquisition Act, 1894 shall ·y
apply to such acquisition and rompensation' shall be pay-
able for the acquisition of such land in accordance with the
provisions in that Act." ,

H A perusal of the said section shows that before the State Government
R.U. GOSWAMI v. STATE OF GUJARAT {KANIA, J.) 781

acquires any land for extension of abadi, the Deputy Commissioner A
has to give his opinion that the area reserved for abadi in the village in
question in insufficient. A reading of sub-section (2) of the said section
shows that it is only where unoccupied land for the purpose of abadi is
not available, that the State can acquire any land for extension of
abadi. Sub-section {3) merely makes the provisions of the Land
Acquisition Act applicable to the procedure for acquisition and for B
determining the compensation. The provisions of section 126 of the
Bombay Land Revenue Code, 1879 read altogether differently. The
said section runs as follows:
"126. Limits of sites of villages, towns and cities how to be
fixed.
It shall be lawful for the Collector or for a
c
survey officer, acting under the general or special
orders of the State Government, to determine what
lands are included within the site of any village,
town, or city, and to fix, and from time to time to
vary the limits of the same, respect being had to all D
subsisting rights of landholders."
A perusal of section 126 of the Bombay Land Revenue Code
shows that unlike section 226 of the Madhya Pradesh Land Revenue
Code, there is nothing in section 126 which indicates that the Collector
+ or a Survey Officer acting under his orders has to first decide to en- E
large or vary the site of any village, town or city before acquisition is
resorted to for enlarging or varying such site under the Act. Section
126 merely deals with the limits of the site of any village, town or city
\ and prescribes the procedure for fixing the limits of such sites. There is
nothing in the Bombay Land Revenue Code or the Land Acquisition
~et which would suggest that before acquisition can be resorted to for F
i enlarging a village site, the Collector or a Survey Officer or Revenue
,i Authority must decide upon such enlargement. Great emphasis was
laid by Mr. Mehta on the last part of section 126 which shows that the
enlargement of the site has to be made, keeping in mind the rights of
the landholders. However, in our opinion, this factor is of no rele-
vance in the present case as there is nothing on record to establish that G
such rights have not been taken into account.
-)'
'
The next submission of Mr. Mehta was that the land acq!lisition
authorities have failed to consider what were the other lands available
which could have been more conveniently acquired for the public
purpose referred to earlier. It was pointed out by him that in the writ
petition, the Appellant (petitioner) has alleged that he could have H
782 SUPREME COURT REPORTS [1988] 2 S.C.R.

A pointed out certain other lands and open spaces where the twelve
families rendered homeless by the floods of Tapti river could have
been housed. With reference to these allegations, the Respondents in
their counter-affidavit filed before the Gujarat High Court have
rightly pointed out that the Appellant had not given any details regard;
ing other more suitable lands available for acquisition and hence it was
B not open to him to make a grievance on that score. Moreover, in
paragraph 29 of the counter-affidavit, the Respondents have pointed
out that the lands referred to by the Appellant in his petition were not
suitable for housing the victims of the floods because they were low-
lying lands lands and not suitable for residential purposes. The assess-
ment of suitability of the land proposed to be acquired for the con-
e cerned public purpose is primarily for the Land Acquisition Officer to
consider and no good reason has been shown to us which could war-
rant interference with his decision. Moreover, we are satisfied that the
Appellant had not even given proper particulars of the other lands
which, according to him, were available for acquisition and were more
suitable for acquisition and hence he can make no grievance on the
D score of proper consideration not having been given to the question of
acquiring such lands.
It was lastly submitted by Mr. Mehta that since several years had
passed from the date of the Notification under section 4, the victims of
the floods must have been housed and rehabilitated elsewhere and
E hence the public purpose for which the lands were sought to be ac- ''1
quired does not survive. We are a little surprised at this argument. The
delay has taken place on account of the legal proceedings adopted by
the Appellant himself and by reason of the interim orders obtained by
him. He cannot take advantage of this delay and claim that the public ,
purpose no longer survives. Moreover, the public purpose stated in the
F Notification is the extension of a village site or goathan of the village -~
Bhairav and there is nothing to show that this public purpose has
exhausted itself. In fact, we presume, on account of the increasing
population, it will be more necessary today that the village site should
be extended even then it was the time when the notification was
issued. This submission must also fail.
G The other controversies sought to be raised by the Appellant are
factual in nature and we do not consider it necessary to go into the
same. 1I
In the result, the Appeal fails and is dismissed with costs.

N.V.K. Appeal dismissed.