CIVIL APPELLATE JURISDICTION : Civil Appeal No. 1102 of 1967. LAppeal from the judgment and order dated July 28, 29, 30. 1965 of the Gujarat High Court in Special Civil Application No. 622 of 1961. S. V. Gupte, H. H. Chatrapati and B. Datta, for the appellants, N. S. Bindra and S. P. Nayar, for respondents Nos. 1 to 3. B. Sen and M. N. Shroff, for respondent No. 4. The Judgment of the Court was delivered by Shah, J. The appellants are owners of "China Baug" situated on the southern bank of the river Sabarmati within the limits of the Municipal Corporation of Ahmedabad. The Ahmedabad Municipal Corporation resolved to move the State Government to acquire a part of the land of the appellants for setting, up a Samadlyi of Mahatma Gandhi. On September 10, 1959, the Commissioner. Ahmedabad Division, in the State of Bombay, issued a notification under S. 4 of the Land Acquisition Act, stating :
"Whereas it appears to the Commissioner,
Ahmedabad Division, that the lands specified
in the schedule hereto are likely to be needed
for public purpose viz. for ’The Memorial of
Rashtrapita Mahatma Gandhi’ :
It is hereby notified under the provisions of
Section 4 of the Land Acquisition Act, 1894 (1
of 1894) "that the said lands are likely to be
needed for the purpose specified above".
Enquiry was made under s. 5A of the Land
Acquisition Act and after receiving the report
of the Collector, the Commissioner. Baroda
Division of the State of Gujarat (who by
virtue of the Bombay Reorganization Act, 1960,
was the appropriate authority) issued a
notification under S. 6 of the Land
Acquisition Act on August 31, 1961, that the
lands were required for the public purpose
specified in column 4 of the schedule to the
notification i.e. "Memorial of Mahatma
Gandhi".
The appellants moved a petition in the High
Court of Gujarat for a writ quashing the
proceeding under the Land Acquisition Act and
the two notifications dated September 10, 1959
and August 31, 1961 and for a writ restraining
the Commissioner. Baroda Division, and the
Government of the State of Gujarat from
enforcing the notifications. The High Court
rejected the petition. With certificate
granted by the High Court under Art. 133(l (c)
of the Constitution this appeal is preferred
by the appellants.
Counsel for the appellant contended that :
(1) that the Commissioners of Divisions Act
8 of 1958 pursuant to which the
Commissioners of Divisions were vested with
authority to discharge statutory functions
vested in the State Commissioner was ultra
vires the legislature.
(2) that in any event the Commissioner,
Baroda Division, State of Gujarat was
incompetent to issue the notification tinder
S. 6 without issuing a fresh notification
under s. 4,
(3) that since the land was notified for
acquisition for the purposes of the Municipal
Corporation the provisions of ss. 77 and 78 of
the Provincial Municipal Corporations Act,
1949, should have been complied with. In any
event acquisition of land for "a Memorial to
Mahatma Gandhi" was not acquisition for a
Municipal purpose and the notifications were
without the authority of law;
(4) that the "instrumentality" which was to
carry out the purpose not having been set out
in the notifications under ss. 4 & 6 the
notifications were illegal and on that account
unenforceable; and
(5) that the Commissioner, Baroda Division,
in issuing the notification under s. 6 did not
apply his mind to the evidence before him and
on that account the notification was liable to
be struck down.
To appreciate the two branches of the first
contention, it is necessary to set out the
relevant statutory provisions. By s. 4 of the
Land Acquisition Act, as amended by the
Adaptation of Laws Order, 1950, it was enacted
that whenever it appears to the approbate
Government that land in any locality is needed
or is likely to be needed for any public
purpose, a notification to that effect shall
be published in the Official Guette, and the
Collector shall cause public notice of the
substance of such notification to be given at
convenient places in the said locality.
Section 6(1), insofar as it is relevant,
provided :
"Subject to the provisions of Part VII of this
Act, when the appropriate Govt. is satisfied,
after considering the report, if any, made
under section 5A, sub-section (2), that any
particular land is needed for a public pur-
pose, or for a Company, a declaration shall be
made to that effect under the signature of a
Secretary to such Govt. or of some officer
duly authorized to certify its orders
The Legislature of the State of Bombay enacted
the Commissioners of Divisions Act 8 of 1958.
By s. 3 of that Act it was provided :
"(1) For the purposes of constituting offices
of Commissioners of divisions and conferring
powers and imposing duties on Commissioners
and for certain other purposes, the enactments
specified in column 1 of the Schedule to this
Act shall be amended in the. manner and to the
extent specified in column 2 thereof.
(2) The Commissioner of a division,
appointed under the law relating to land
revenue as amended by the said Schedule, shall
exercise the powers and discharge the duties
conferred and imposed on the Commissioner by
any law for the time being in force, including
the enactments referred to in sub-section (1)
as amended by the said Schedule.
(3)
(4) The State Government may confer and
impose on the Commissioner powers and duties
under any other ,enactment for the time being
in force and for that purpose may, by a
notification in the Official Gazette, add to
or specify in the Schedule the necessary
adaptations and modifications in that
enactment by way of amendment; and thereupon-
(a) every such enactment shall accordingly
be amended and have effect subject to the
adaptations and modifications so made, and
(b) the Schedule to this Act shall be deemed
to be amended by the inclusion therein of the
said provision for amending the enactment". The Government of the State of Bombay issued on September 5, 1958 a notification under s. 3(4) of the Commissioners of Divisions Act, conferring and imposing on the Commissioners concerned the powers and duties under the enactments specified therein and for that purpose added to and specified in the Schedule to that Act certain adaptations and modifications in those enactments by way of amendment. In the Land Acquisition Act, in s. 4(1) after the words "appropriate Government" the words "or the Commissioner" were inserted, and in S. 6(1)(a) after the words "appropriate Government" the words "or, as the case may be, the Commissioner" will be inserted. It is unnecessary to consider the elaborate arguments which were presented before the High Court that ss. 3(3) and 3(4) of the Commissioners of Divisions Act 8 of 1958 constituted excessive delegation of legislative power to the State Government resulting in abdication of the functions of the State Legislature, and were on that account in valid. This Court has in Arnold Rodricks & Anr. v. State of Maharashtra & Ors.(1) by majority held that the powers conferred by s. 3 (4) on the State Governments are not unguided and that the State Legislature has by enacting S. 3 (4) not abdicated its powers in favour a the executive, for it has laid (1) [1966] 3 S.C.R. 885. down the legislative policy and has left it to the State Government to reorganise the administration, consequent on the setting up of Commissioners Divisions. The challenge to the vires of the Commissioners of Divisions Act 8 of 1958 must fail. The notification under s. 4 of the Land Acquisition Act was issued by the Commissioner, Ahmedabad Division, exercising powers as an officer of the State of Bombay. But after the notification was issued, the State of Bombay was reorganized and the area in which the land is situated was included in the new State of Gujarat. The Commissioner of Baroda Division was competent to exercise the powers under the Commissioners of Divisions Act which continued to remain in force in the new State of Gujarat in respect of the Land Acquisition Act and had on that account power to issue a notification under s. 6 of the , Act. The notification under s. 4 was issued by the Commissioner, Ahmedabad Division, who was competent to issue it in the set-up then in existence and the Commissioner competent to issue the notification under s. 6 had issued that notification. The authority of the Commissioner of the State of Gujarat to issue the notification under section 6 not being open to challenge, there is nothing in the Land Acquisition Act or the Commissioners of Divisions Act, which requires that to invest the notification under s. 6 with validity, the Commissioner of the State of Gujarat had in the first instance to issue a notification under s. 4 of the Act declaring that the land was needed or was likely to be needed for any public purpose. Turning to the second contention, the relevant statutory provisions may first be read. Section 77 of the Provincial Municipal Corporations Act, 1949, insofar as it is relevant, by sub-s. (1) provides:
"Whenever it is provided by this Act that the
Commissioner may acquire or whenever it is
necessary or expedient for any purpose of this
Act that the Commissioner shall acquire, any
immovable property, such property may be
acquired by the Commissioner on behalf of the
Corporation by agreement on such terms or
prices and at such rates or prices or at rates
or prices not exceeding such maxima as shall
be approved by the Standing Committee either
generally for any class of cases or specially
in any particular case."
Section 78(1) provides :
"Whenever the Commissioner is unable under
section 77 to acquire by agreement any
immovable property, the
Provincial Government
may, in its discretion, upon the application
of the Commissioner, made with the approval,
of the Standing Committee and subject to the
other provisions of this Act, order
proceedings to be taken, for acquiring the
same on behalf of the Corporation, as if such
property were land needed for a public purpose
within the meaning of the Land Acquisition
Act, 1894." There is nothing in ss. 77(1) & 78(1) which supports the contention that before initiation of a proceeding for acquisition of land,, which it is necessary or expedient for any purpose of the Municipal Act to be acquired, the Commissioner of the Municipality must start negotiations for purchase by private agreement, and if he is unable to so, purchase the land the State Government may be moved for acquiring the land for the Municipality, and not otherwise. Exercise of power to move the State under S. 78 of the Provincial Municipal Corporations Act, to acquire land is not conditioned by any such limitation as suggested by counsel for the appellant. The opening clause of S. 78(1) merely indicates an alternative and not a condition. Even if no attempt is made, tinder s. 77 to acquire the land by agreement, it is open to the Commissioner of the Municipal Corporation, with the approval of the Standing Committee and subject to the other provisions of the Act, to move the Provincial Government to take steps for acquisition of the land. By statutory provision, it is expressly enacted that where the purpose is one for which the Commissioner of the Municipality may require the I and under the provisions of the Provincial Municipal Corporations Act, 1949, or is a purpose of the Act for which it is deemed necessary or expedient by the Commissioner of the Municipality to acquire the land, such a purpose shall be regarded as a public purpose within the meaning of s. 4(1) of the Land Acquisition Act, even if it does not fall within the expression "public purpose" as normally understood. The High Court was of the view that setting up of a memorial to Mahatma Gandhi falls within cl. (42) of S. 66 of the Provincial Municipal Corporations Act, and therefore within the competence of the Municipal Corporation. Section 66(42) authorises the Corporation, in its discretion, to provide from time to time either wholly or partly, in the matters, inter alia, of any measure likely to promote public safety, health, convenience or instruction. and in the view of the High Court "setting up a Samadhi or memorial of the type could be fairly regarded as incidental to the right and power to give public instruction which is a matter within the competence of , the Municipal Corporation under cl. (42) of s, 66’. It is not necessary for us to express any opinion on this part of the case, for, we are clearly of the view that the notification under s. 4 of the Land Acquisition Act does not refer to any purpose of the Ahmedabad Municipal Corporation, nor is the acquisition for a purpose for which the Commissioner is required by the provisions of the Provincial Municipal Corporations Act, 1949, to acquire the land. The land is needed for setting up a memorial to Mahatma Gandhi at a place associated with him, and we regard, because of the universal veneration in which the memory of Mahatma Gandhi is held in our country, that the purpose was a public purpose. Counsel for the ’appellants has not attempted to argue that acquisition of land for setting up a memorial to Mahatma Gandhi at a place which has some association with him is not a public purpose. He merely argued that setting up of a memorial to Mahatma Gandhi is not a purpose for which the Commissioner is required by the Provincial Municipal Corporations Act, 1949, to acquire the land, nor is it a purpose of the Municipality under the Municipal Corporations Act. The purpose of acquisition being one which falls within the normal connotation of the expression "public purpose" within the meaning of s. 4 of the Land Acquisition Act, it is unnecessary to rely upon the extended meaning of the expression "public purpose" as provided by s. 78(1) of the Provincial Municipal Corporations Act, 1949. It was urged that municipal funds were, contrary to the provisions of the Provincial Municipal Corporations Act, 1949, intended to be utilised for setting up a memorial to Mahatma Gandhi. But we are not concerned in the present case to determine whether if the funds are utilised, they will be lawfully utilised : that is a matter which is not within the periphery of the inquiry in this appeal. The land is being acquired for a purpose which is a public purpose, and once that condition is fulfilled no further inquiry need be made, whether if the municipal funds are to be utilised for setting up a memorial to Mahatma Gandhi after the land is vested in the State after acquisition, the Municipality will be acting within the limits of its authority. We may observe that a notification issued under s. 6 is by sub-s. (3) conclusive evidence that the land is needed for a public purpose. The Land Acquisition Act does not provide that the instrumentality which is to carry out the purpose must be set out in the notifications under ss. 4 & 6 of the Act. The Gujarat High Court in Special Civil Application No. 800 of 1961. Chandulal Patel v. The State of Gujarat held that if the public purpose for which land is notified for acquisition is to be executed through ",In instrumentality other than the State Government ’," failure to specifically mention "the instrumentality" in the notifications rends notification invalid. But in Ramji Popatbhai v. Jamnadas sha a Full Bench of the High Court has overruled that earlier (1) (1969) Guj. L.R. 164. slp. C.I./70-13 judgment. In Vishnu Prasad Ramdas Gohil & Others v. The State of Gujarat(1) we have held, agreeing with the view of the Full Bench of the Gujarat High Court, that failure to specify the instrumentality which is to execute the public purpose does not affect the validity of the notification either under S. 4 or under S. 6 of the Land Acquisition Act. There is no substance in the argument that the Commissioner, Baroda Division, did not apply his mind in issuing the notification under S. 6. The land notified for acquisition under s. 4 was 3428 sq. yards 3 sq. ft. out of Survey No. 348B, and 494 sq. yards 5 sq. ft. out. of Survey No. 349. The area of the land notified under s. 6 was stated to be 3562 sq. yards out of Survey No. 348B and 387 sq. yards out of Survey No. 349. Even though the area of land out of Survey No. 348B exceeded the area originally mentioned in the notification under s. 4, the Commissioner stated in the impugned notification that "the remaining area of the said lands notified under section 4 is hereby abandoned". It was urged that there was no "remaining- area" of the land out of Survey No. 348B which could be abandoned and the recital indicated that the Commissioner did not apply his mind to the relevant materials on which the notification was to be issued. It is, however, to be noticed that the entire Survey No. 348B was not notified for acquisition : only a part of the land was notified for acquisition under the notification under s. 4. Under that notification 3428 sq. yards 3 sq. ft. were notified, but the notification under S. 6 the declaration related to 3562 sq. yards. Under the notification under s. 6 it was recited that the remaining area of the land out of Survey No. 348B was declared as not likely to be needed for a public purpose. The use of the expression "the remaining area of the said lands notified under section 4...... is hereby abandoned" does not justify an inference that the Commissioner did not apply his mind. It may be reasonably inferred that it was intended to be conveyed thereby that a part of the land out of Survey No. 348B which was not needed for a public purpose was excluded from the notification. The appeal fails and is dismissed. Having regard to the circumstances of the case, there will be no order as to costs. G.C. Appeal dismissed. (1) C.A. No. 1983 of 1966 decided on Oct. 9 1969.