judgement:
Civil Appeal No. 1258 of 1969.
From the Judgment and Decree dated 17 2 1969 of the Kerala High Court in Writ Appeal No. 45 of 1968.
V. A. Seyid Mohammed and K. M. K. Nair for the Appellant.
Ex Parte for the Respondent.
The Judgment of the Court was delivered by CHINNAPPA REDDY, J.
The perennial, nagging problem of delegated legislation and the so called Henry VIII clause have again come up for decision in this appeal by the State of Kerala.
Section 60 of the Madras Cooperative Societies Act 1932 and a notification issued under that provision were struck down by the High Court of Kerala on the ground of unconstitutional delegation of legislative power.
Certain consequential directions were issued by the High Court.
Those directions have long since worked themselves out and so the party who invoked the jurisdiction of the High Court under Article 226 of the Constitution has no longer any surviving interest.
The State of Kerala is, however, interested in sustaining the validity of Section 60 and has filed this appeal.
Lawyers and judges have never ceased to be interested in the question of delegated legislation and since the case, we 262 have been blessed(?) by an abundance of authority, the blessing not necessarily unmixed.
We do not wish, in this case, to search for the precise principles decided in the case, nor to consider whether N. K. Papiah & Sons vs Excise Commissioner(1) beats the final retreat from the earlier position.
For the purposes of this case we are content to accept the "policy" and "guidelines" theory and seek such assistance as we may derive from cases where near identical provisions have been considered.
It is trite to say that the function of the State has long since ceased to be confined to the preservation of the public peace, the exaction of taxes and the defence of its frontiers.
It is now the function of the State to secure to its citizens 'Social, economic and political justice ', to preserve 'liberty of thought, expression, belief, faith and worship, ' and to ensure 'equity of status and of opportunity ' and 'the dignity of the individual ' and the 'unity of the nation.
That is what the Preamble to our Constitution says and that is what is elaborated in the two vital chapters of the Constitution on Fundamental Rights and Directive Principles of State Policy.
The desire to attain these objectives has necessarily resulted in intense legislative activity touching every aspect of the life of the citizen and the nation.
Executive activity in the field of delegated or subordinate legislation has increased in direct, geometric progression.
It has to be and it is as it should be.
The Parliament and the State Legislatures are not bodies of experts or specialists.
They are skilled in the art of discovering the aspirations, the expectations and the needs, the limits to the patience and the acquiescence and the articulation of the views of the people whom they represent.
They function best when they concern themselves with general principles, broad objectives and fundamental issues instead of technical and situational intricacies which are better left to better equipped full time expert executive bodies and specialist public servants.
Parliament and the State Legislatures have neither the time nor the expertise to be involved in detail and circumstance.
Nor can Parliament and the State Legislatures visualise and provide for new, strange, unforeseen and unpredictable situations arising from the complexity of modern life and the ingenuity of modern man.
That is the raison d 'etre for delegated legislation.
That is what makes delegated legislation inevitable and indispensable.
The Indian Parliament and the State Legislatures are endowed with plenary power to legislate upon any of the subjects entrusted to them by the Constitution, subject to the limitations imposed by the Constitution itself.
The power to legislate carries with it the power to delegate.
But excessive delegation may amount to abdication.
Delegation unlimited may invite 263 despotism uninhibited.
So the theory has been evolved that the legislature cannot delegate its essential legislative function.
Legislate it must by laying down policy and principle and delegate it may to fill in detail and carry out policy.
The legislature may guide the delegate by speaking through the express provision empowering delegation or the other provisions of the statute, the preamble, the scheme or even the very subject matter of the statute.
If guidance there is, wherever it may be found, the delegation is valid.
A good deal of latitude has been held to be permissible in the case of taxing statutes and on the same principle a generous degree of latitude must be permissible in the case of welfare legislation, particularly those statutes which are designed to further the Directive Principles of State Policy.
In Harishankar Bagla and Anr.
vs The State of Madhya Pradesh,(1) the question arose whether Section 3 of the Essential Supplies (Temporary Powers) Act, 1946, which empowered the Central Government to make orders providing for the regulation or prohibition of the production, supply and distribution of essential commodities and trade and commerce therein was void for excessive delegation.
The Court said it was not and observed: ". the legislature cannot delegate its function of laying down legislative policy in respect of a measure and its formulation as a rule of conduct.
The Legislature must declare the policy of the law and the legal principles which are to control any given cases and must provide a standard to guide the officials or the body in power to execute the law.
The essential legislative function consists in the determination or choice of the legislative policy and of formally enacting that policy into a binding rule of conduct.
In the present case the legislature has laid down such a principle and that principle is the maintenance or increase in supply of essential commodities and of securing equitable distribution and availability at fair prices.
The principle is clear and offers sufficient guidance to the Central Government in exercising its powers under section 3".
In The Edward Mills Co. Ltd., Beawar vs The State of Ajmer(2), this Court considered the question whether section 27 of the Minimum Wages Act under which power was given to the Government to add to either part of the schedule any employment in respect of which it was in its opinion that minimum wages should be fixed exceeded the 264 limits of permissible delegation and was, therefore, unconstitutional.
The Court held that the legislative policy was apparent on the face of the enactment which aimed at the statutory fixation of minimum wages with a view to obviate the chance of exploitation of labour.
The intention of the Legislature was not to apply the Act to all industries but only to those industries where by reason of unorganised labour or want of proper arrangements for effective regulation of wages or for other causes the wages of labourers in a particular industry were very low.
In enacting section 27 there was, therefore, no delegation of essential legislative power.
In Pandit Banarsi Das Bhanot vs The State of Madhya Pradesh(1), this Court held that it was not unconstitutional for the Legislature to leave it to the Executive to determine details relating to the working of taxation laws such as the selection of persons on whom the tax is to be laid, the rates at which it is to be charged in respect of different classes of goods and the selection of goods in respect of which exemption from taxation might be granted etc.
In Sardar Inder Singh vs The State of Rajasthan(2), the validity of s.15 of the Rajasthan (Protection of Tenants) Ordinance which authorised the Government to exempt any person or class of persons from the operation of the Act was upheld and the argument that there was impermissible delegation of legislative power was repelled on the ground that the Preamble to the Ordinance set out with sufficient clarity the policy of the Legislature.
In Vasantal Maganbhai Sanjanwala vs The State of Bombay(3), section 6 (2) of the Bombay Tenancy & Agricultural Lands Act was challenged as permitting excessive delegation of legislative power as it enabled the Government to fix a lower rate of the maximum rent payable by the tenants of lands situate in any particular area or to fix such rate on any suitable cases as it thought fit.
This Court noticed that the Act was undoubtedly a beneficent measure, as shown by the Preamble which stated that the object of the Act was to improve the economic and social conditions of peasants and ensure the full and efficient use of land for agricultural.
Bearing in mind the Preamble and the material provisions of the Act, it was held that the power delegated was within permissible limits.
265 In Jyoti Pershad vs The Administrator for the Union Territories of Delhi,(1) Rajagopala Ayyangar, J. made some useful observations which may be extracted here: "In regard to this matter we desire to make two observations.
In the context of modern conditions and the variety and complexity of the situations which present themselves for solution, it is not possible for the Legislature to envisage in detail every possibility and make provisions for them.
The Legislature therefore is forced to leave the authorities created by it an ample discretion limited, however, by the guidance afforded by the Act.
This is the ratio of delegated legislation, and is a process which has come to stay, and which one may be permitted to observe is not without its advantages.
So long therefore as the Legislature indicates, in the operative provisions of the statute with certainty, the policy and purpose of the enactment, the mere fact that the legislation is skeletal, or the fact that a discretion is left to those entrusted with administering the law, affords no basis either for the contention that there has been an excessive delegation of legislative power as to amount to an abdication of its functions, or that the discretion vested is uncanalised and unguided as to amount to a carte blanche to discriminate.
The second is that if the power or discretion has been conferred in a manner which is legal and constitutional, the fact that Parliament could possibly have made more detailed provisions, could obviously not be a ground for invalidating the law.
" In Mohammad Hussain Gulam Mohammad vs The State of Bombay,(2) the question was about the vires of section 29 of the Bombay Agricultural Produce Markets Act.
It gave power to the State Government to add to, or amend, or cancel any of the items of agricultural produce specified in the schedule in accordance with prevailing local conditions.
The attack was on the ground that legislative power had been delegated to an extent not permissible.
The Court while noticing that section 29 itself did not provide for any criterion for determining which item of agricultural produce should be put into the schedule, nevertheless upheld its vires on the ground that guidance was writ large in the various provisions and the scheme of the Act.
It was observed that in each case the State Government had to consider whether the 266 volume of trade in the produce was of such a nature as to give rise to wholesale trade so as to merit inclusion in the schedule.
Let us now turn to section 60 of the Madras Cooperative Societies Act, 1932 whose vires is in question and which is as follows: "section 60: The State Government may, by general or special order, exempt any registered society from any of the provisions of this Act or may direct that such provisions shall apply to such society with such modifications as may be specified in the order.
" The provision is a near Henry VIII clause.
But to give it a name is not to hang it.
We must examine the preamble, the scheme and other available material to see if there are any discernible guidelines.
Sure the Cooperative Societies Act is a welfare legislation.
Its preamble proclaims: "Whereas it is expedient further to facilitate the formation and working of co operative societies for the promotion of thrift, self help and mutual aid among agriculturists and other persons with common economic needs so as to bring about better living, better business and better methods of production and for that purpose to consolidate and amend the law relating to co operative societies in the State of Madras." The policy of the Act is there and so are the guidelines.
Why the legislation ? "To facilitate the formation and working of Cooperative Societies".
Cooperative Societies, for what purpose ? "For the promotion of thrift, self help and mutual aid".
Amongst whom ? "Among agriculturists and other persons with common economic needs".
To what end ? "To bring about better living, better business and better methods of production".
The objectives are clear; the guidelines are there.
There are numerous provisions of the Act dealing with registration of societies, rights and liabilities of members, duties of registered societies, privileges of registered societies, property and funds of registered societies, inquiry and inspection, supersession of committees of societies, dissolution of societies, surcharge and attachment, arbitration etc.
We refrain from referring to the details of the provisions except to say that they are generally designed to further the objectives set out in the preamble.
But, numerous as the provisions are, they are not capable of meeting the extensive demands of the complex situations which may arise in the course of the working of the Act and the formation and the functioning of the societies.
In fact, the too rigorous application of some of the provisions of the Act may itself occasionally result 267 in frustrating the very objects of the Act instead of advancing them.
It is to provide for such situations that the Government is invested by section 60 with a power to relax the occasional rigour of the provisions of the Act and to advance the objects of the Act.
Section 60 empowers the State Government to exempt a registered society from any of the provisions of the Act or to direct that such provision shall apply to such society with specified modifications.
The power given to the Government under section 60 of the Act is to be exercised so as to advance the policy and objects of the Act, according to the guidelines as may be gleaned from the preamble and other provisions which we have already pointed out, are clear.
We are therefore of the view that section 60 is not void on the ground of excessive delegation of legislative power.
We so declare and otherwise dismiss the appeal.
N.V.K. Appeal dismissed.

summary:
Section 60 of the Madras Cooperative Societies Act, 1932, empowers the State Government to exempt a registered society from any of the provisions of the Act or to direct that such provision shall apply to such society with specified modifications.
In the appeal to this Court on the question whether Section 60 of the Act is void on the ground of unconstitutional delegation of legislative power.
^ HELD: 1.
Section 60 is not void on the ground of excessive delegation of legislative power.
[267 C] 2.
The power given to the Government under section 60 of the Act is to be exercised so as to advance the policy and objects of the Act, according to the guidelines enunciated in the preamble and the other provisions of the Act.[267 B] 3.
The Act, a welfare legislation, to facilitate the formation and working of cooperative societies consists of numerous provisions, dealing with registration of societies, rights and liabilities of members, duties of registered societies, privileges of registered societies, property and funds of registered societies, inquiry and inspection, supersession of committees of societies, dissolution of societies, surcharge and attachment, arbitration etc.
The too rigorous application of some of the provisions of the Act may itself occasionally result in frustrating the very objects of the Act instead of advancing them.
To provide for such situations, the Government was invested by section 60 with a power to relax the occasional rigour of the provisions of the Act and to advance the objects of the Act.[266 D, G; H 277 A] 4.
(i) Parliament and the State Legislatures are endowed with plenary power to legislate upon any of the subjects entrusted to them by the Constitution, subject to the limitations imposed by the Constitution itself.
The power to legislate carries with it the power to delegate.
While excessive delegation may amount to abdication, delegation unlimited may invite despotism uninhibited.
The theory has therefore been evolved that the legislature cannot delegate its essential function.
[262 H 263 A] (ii) The Parliament and the State Legislatures are not bodies of experts or specialists.
They are skilled in the art of discovering the aspirations, the expectations and the needs, the limits to the patience and the acquiescence and the articulation of the views of the people whom they represent.
They function best when they concern themselves with general principles, broad objectives and 261 fundamental issues instead of technical and situational intricacies which are better left to better equipped full time expert executive bodies and specialist public servants.
Parliament and the State Legislatures have neither the time nor the expertise to be involved in detail and circumstance.
Nor can Parliament and the State Legislatures visualise and provide for new, strange, unforeseen and unpredictable situations arising from the complexity of modern life and the ingenuity of modern man.
That is the raison d 'etre for delegated legislation.
[262 E G] (iii) The Legislature may guide the delegate by speaking through the express provision empowering delegation or the other provisions of the statute, the preamble, the scheme or even the very subject matter of the statute.
If guidance there is, wherever it may be found the delegation is valid.
A generous degree of latitude must be held permissible in the case of welfare legislation, particularly these statutes which are designed to further the Directive Principles of State Policy.
[263 B] ; , M. K. Papiah & Sons vs Excise Commissioner ; Harishankar Bagla and Anr.
vs The State of Madhya Pradesh [1955] 1 S.C.R., p. 380 @ 388: The Edward Mills Co. Ltd., Beawar vs The State of Ajmer ; Pandit Banarsi Das Bhanot vs The State of Madhya Pradesh ; Sardar Inder Singh vs The State of Rajasthan, Vasantlal Maganbhai Sanjanwala vs The State of Bombay, ; Jyoti Prasad vs The Administrator for the Union Territory of Delhi ; Mohammad Hussain Gulam Mohammad vs The State of Bombay, ; , referred to.


judgement:
LATE JURISDICTION: Civil Appeal No. 1479 of 1971.
From the Judgment and Order dated 25 4 1969 of the Gujarat High Court in SCA No. 271/65.
G.A. Shah, N.S. Pande and M.N. Shroff for the Appellant.
P.R. Mridul, Vimal Dave and Miss Kailash Mehta for Respondent No. 1.
I. N. Shroff and H. section Parihar for Respondent No. 2.
The Judgment of the Court was delivered by SEN, J.
This appeal on certificate from a judgment of the Gujarat High Court raises a question as to the validity or otherwise or a fresh notification issued by the Government of Gujarat under section 6 of the d Acquisition Act, 1894, consequent upon an earlier notification under section 6 of the Act being discovered to be invalid.
The first respondent in this case owned certain land bearing Final Plot No. 38 forming part of Town Planning Scheme No. III (Ellis bridge) situate within the city of Ahmedabad.
At the request of the second respondent Sri Ayodhya Nagar Co operative Housing Society Ltd., registered under the Bombay Co operative Societies Act, 1925, now deemed to be registered under the Gujarat Co operative Societies Act, 1961, formed with the object of enabling its members to construct houses, the State Government on August 3, 1960 issued a notification 286 under section 4 stating that the land was likely to be needed for a public purpose.
This was followed by a notification of the State Government dated August 21, 1961 under section 6 of the Act stating that the land was to be acquired at the expense of Sri Ayodhya Nagar Cooperative Housing Society Ltd. for the public purpose specified in column 4 of the schedule annexed thereto.
The public purpose specified in column 4 of the schedule was 'For construction of houses for Sri Ayodhya Nagar Co operative Housing Society Ltd., Ahmedabad.
The entire expense of the acquisition was to be borne by the second respondent, i.e., the Co operative Housing Society.
The first respondent moved the High Court under article 226 of the Constitution challenging the validity of the notification under section 6 on the ground that the acquisition of the land for a public purpose at the expense of the second respondent was legally invalid.
On December 4, 1961 the High Court issued an ad interim injunction restraining the appellant from proceeding with the acquisition proceedings.
While this writ petition was pending, the State Government by its notification dated May 27, 1963 cancelled the notification under section 6.
on September 10, 1964 the State Government issued a fresh notification under section 6 stating that the land was to be acquired at the public expense, for the public purpose specified in column 4 of the schedule.
The public purpose specified in column 4 in the schedule was 'For housing scheme undertaken by Sri Ayodhya Nagar Co operative Housing Society Ltd. The High Court following its earlier decision in Dosabhai Ratansha Keravala vs State of Gujarat & Ors.
struck down the second notification under section 6 dated September 10, 1964.
It held inter.
alia that the first notification under section 6 issued on August 21, 1961 being an acquisition for a society at its cost, was valid and the Government could have proceeded to complete the acquisition under it but, under a false sense of apprehension as to its validity, the Government cancelled it on May 27, 1963.
There was no justification for cancelling the first notification under section 6 and even if the Government wanted to cancel it out of a feeling of apprehension as to its validity, the Government need not have taken one year and ten months to do so.
(2) After the issue of the first notification under section 6 on August 21, 1961, the notification dated August 3, 1960 under section 4 was exhausted and, therefore, could not be used to support the second notification issued under section 6 on September 11, 1964.
(3) The cancellation of the first notification under section 6 by the notification dated May 27, 1963 did not have the effect of reviving the notification under section 4 so as to make it available for supporting the second notification under section 6.
The second notifi 287 cation under section 6 not being supported by any notification under section 4 Was consequently invalid.
(4) A notification under section 6 in order to be valid must follow within a reasonable time after the issue of a notification under section 4.
The notification under section 4 was issued on August 3, 1960 and the second notification under s 6 on September 10, 1964 and there was thus an interval of about four years and one month between the two notifications.
This interval of time, could not be regarded as reasonable.
Even tested by the yardstick of reasonable time provided by the legislature in the second proviso introduced in section 6 by the Land Acquisition (Amendment and Validation) Act.
1967, namely three years, the period of about four years and one month between the two notifications under section 4 and section 6 would be clearly unreasonable.
The second notification must, therefore, be held to be invalid on this ground also.
We are clearly of the opinion that the High Court was in error m striking down the second notification under section 6 issued on September 10, 1964.
In Valjibhai.
Muljibhai Soneji.
vs State of Bombay the Court held that the Government has no power to issue a notification for acquisition of land for a public purpose, where the compensation is to be entirely paid by a company.
The first notification issued by the Government under section 6 for acquisition of the land for a public purpose, at the expense of the second respondent, the Co operative Society, was, therefore, invalid.
The State Government was, there fore, justified in issuing the second notification under section 6 after removing the lacuna i.e., by providing for acquisition of the land for the said public purpose, at public expense.
In an endeavour to support the judgment, counsel for the first respondent advanced a three fold contention.
It was urged, firstly, that successive notifications cannot be issued under section 6 placing reliance on State of Madhya Pradesh & Ors.
vs Vishnu Prasad Sharma & Ors.
It was pointed out that the Land Acquisition (Amendment and Validation) Act, 1967 had a limited scope and it validated only successive notifications issued under section 6 in respect of different parcels of land but did not validate successive notifications in respect of the same land.
Further, it was urged that the Act was not retrospective in operation and, therefore, the validity of the second notification dated September 10, 1964 had to be Adjudged with reference to the pre amendment law, i.e., according to the law as declared by this Court in Vishnu Prasad Sharma 's case.
Secondly, it was urged, on the strength of the deci 288 sion in Dosabhai Ratansha Karevala 's case (supra) that a notification under section 4 is exhausted when it is followed by declaration under section 6 It was urged that the first notification under section 6 dated August 21, 1961 was valid and the High Court was, therefore, justified in holding that with its cancellation, the notification under section 4 lapsed.
Thirdly, it was urged that there was unreasonable delay in issuing the second notification under section 6 and, this, by itself, was sufficient to invalidate it.
In Vishnu Prasad Sharma 's case the Court held that sections 4, S A and 6 are integrally connected and present a complete scheme for acquisition and, therefore, it was not open to the Government to make successive declarations under section 6.
Wanchoo J. (as he then was), speaking for himself and Mudholkar J., observed: "It seems to us clear that once a declaration under section 6 is made, the notification under section 4(1) must be exhausted, for it has served its purpose.
There is nothing in sections 4, 5 A and 6 to suggest that section 4(1) is a kind of reservoir from which the government may from time to time draw out land .
and make declarations with respect to, it successively.
If that was the intention behind sections 4, S A and 6 we would have found some indication of it in the language used there in But as we read these three sections together we can only find that the scheme is that section 4 specifies the locality, then there may be survey and drawing of maps of the land and the consideration whether the land is adapted for the purpose for which it has to be acquired, followed by objections and making up of its mind by the government what particular land out of that locality it needs.
This is followed by a declaration under section 6 specifying the particular land needed and that in our opinion completes the process and the notification under section 4(1) cannot be further used there after.
At the stage of section 4 the land is not particularised but only the locality is mentioned; at the stage of section 6 the land in the locality is particularized and thereafter it seems to us that the notification under section 4(1) having served its purpose exhausts itself.
" Sarkar J., in a separate but concurring judgment, observed: "My learned brother has said that sections 4, 5A and 6 of the Act have to be read together and.
so read, the conclusion is clear that the Act contemplates only a single declaration under section 6 in respect of a notification under section 4.
" 289 After rejecting the contention that the Government may have difficulty A in making the plan of its projects complete at a time, particularly where the project is large, and therefore, it is necessary that it should have power to make successive declarations under section 6, he observed: "I cannot imagine a Government, which has vast resources, not being able to make a complete plan of its project at a time.
Indeed, I think when a plan is made, it is a complete plan.
I should suppose that before the Government starts acquisition proceedings by the issue of a notification under section 4, it has made its plan for otherwise it cannot state in the notification, as it has to do, that the land is likely to be needed.
Even if it had not then completed its plan, it would have enough time before the making of a declaration under section 6 to do so.
I think, therefore, that the difficulty Of the Government, even if there is one, does not lead to the conclusion that the Act contemplates the making of a number of declarations under section 6.
" In the present case, the question, however, does not arise as the first notification under section 6 dated August 21, 1961 being invalid, the Government was not precluded from making a second notification.
Due to the invalidity of the notification under section 6, the notification under section 4 still held the field and on its strength another notification under section 6 could be issued.
It is, therefore, not necessary to deal with the effect of the validating Act.
The matter is squarely covered by the decision of the Court in Girdharilal Amratlal Shodan & Ors.
vs State of Gujarat & Ors.
The Court rejected the contention that by cancelling the first notification under section 6, as here, the Government must be taken to have withdrawn from the acquisition and consequently could not issue a second notification under section 6.
there also the first notification under section 6 was invalid and of no effect, as the Government had no power to issue a notification for acquisition for a public purpose where the compensation was to be paid entirely by a company? as held by this Court in Sham Behari & Ors.
vs State of Madhya Pradesh & Ors.
It will be noticed that in Girdharilal Amratlal Shodan 's case the facts were identical.
On August 3, 1960 the Government of Gujarat issued a notification under section 4 in respect of certain land falling in Final Plot No. 460 of the Town Planning Scheme No. III of Elisbridge in the city of Ahmedabad, stating that the land was likely to be needed for a public purpose, viz., for construction of houses for Sri Krishna 290 kunja Government Servants ' Co operative Housing Society Ltd. On July 18, 1961 the State Government issued a notification under section 6 stating that the land was to be acquired for the aforesaid public purpose at the expense of Sri Krishnakunj Government Servants ' Co operative Housing Society Ltd.
On September 22, 1961, the landholder filed a writ petition in the High Court for an order quashing the notification under section 6.
During the pendency of the proceedings, the Government issued a notification dated April 28, 1964 cancelling the aforesaid notification dated July 18, 1961.
On August 14, 1964 the Government issued a fresh notification under section 6 stating that the land notification under section 6 staling that the land was needed to be acquired at the public expense for a public purpose viz, for the housing scheme undertaken by Sri Krishnakunj Government Servants ' Co operative Housing Society Ltd. The contention was that by cancelling the first notification under section 6, the Government must be deemed to have withdrawn from the acquisition and cancelled the notification under section 4, and therefore, could not issue the second notification under section 6, without issuing a fresh notification under section 4.
It was also urged that the power of the State Government to issue a notification under section 6 was exhausted, and the Government could not issue a fresh notification under section 6.
The Court rejected both the contentions observing: "Having regard to the proviso to ' section 6, of the Act, a declaration for acquisition of the land for a public purpose could only be made if the compensation to be awarded for it was to be paid wholly or partly out of public revenues or some fund controlled or managed by a local authority.
The Government had no power to issue a notification for acquisition for a public purpose where the compensation was to be paid .
entirely by a company.
The notification dated JULY 18, 1961 was, therefore, invalid and of no effect, see Shyam Behari vs State of Madhya Pradesh.
The appellants filed the writ petition challenging the aforesaid notification on this ground.
The challenge was justified and the notification was liable to be quashed by the Court.
" "The State Government realised that the notification was invalid, and without waiting for an order of Court.
cancelled the notification on April 28, 1964.
The cancellation was in recognition of the invalidity of the notification.
The Government had no intention of withdrawing from the acquisition.
Soon after the cancellation, the Government issued a fresh notification under section 6 whereas in this case the notifi 291 cation under section 6 is incompetent and invalid, the Government may treat it as ineffective and issue a fresh notification under section 6.
This is what, in substance, the Government did in this case.
The cancellation on April 28, 1964 was no more than a recognition of the invalidity of the earlier notification.
" The first notification issued under section 6 on August 21, 1961 was obviously invalid and of no effect.
By the issue of this notification, the Government had not effectively exercised its powers under section 6.
In the circumstances, the Government could well issue a fresh notification under section 6 dated September 10, 1964.
In State of Gujarat vs Musamiyan Imam Haider Bux Razvi & Anr. etc.
this Court while reversing the decision of the Gujarat High Court in Dosabhai Ratansha Kerravala (supra) on which the High Court based its decision, has laid down two important principles: (1) In view of the decisions of this Court in Pandit Jhandu Lal & Ors.
vs The State of Punjab & Ors., Ratilal Shankarbhai & Ors.
vs State of Gujarat & Ors.
and Ram Swarup vs The District Land Acquisition Officer, Aligarh & Ors.
the acquisition of land for a co operative housing society is a public purpose.
The Government is the best Judge to determine whether the purpose in question is a public purpose or not; and, it cannot be said that a housing scheme for a limited number of persons cannot be construed to be a public purpose inasmuch as the need of a section of the public may be a public purpose.
(2) When a notification under section 6 is invalid, the government may treat it as ineffective and issue a fresh notification under section 6, and nothing in section 48 of the Act precludes the government from doing so, as held by this Court in Girdharilal Amratlal Shodan.
The High Court had not the benefit of these decisions when it held that acquisition of land for a co operative housing society was not a public purpose and, therefore, the first notification dated August 21, 1961 issued under section 6 of the Act was valid.
The substratum on which the decision of the High Court rests has, therefore, disappeared.
This Court in Musamiyan 's case distinguished the decision in State of Madhya Pradesh & Ors.
vs Vishnu Prasad Sharma & Ors.
(supra) by quoting the passage referred to above.
The decision in Vishnu Prasad Sharma 's case is not an authority for the proposition that where a notification under section 6 is found to be invalid it cannot be followed by a fresh notification under section 6.
In fact, the decision of the High Court 292 runs counter to what it had observed in Dosabhai Ratansha Keravala 's case, after referring to the decisions of this Court in Vishnu Prasad Sharma 's case and Girdharilal Amratlal Shodan 's case: "If the first section 6 notification is invalid, that is, non est, section 4 notification cannot be regarded as exhausted, for its purpose is yet unfulfilled; its purpose could be fulfilled only by issue of a valid notification under section 6.
" There remains the question whether the High Court was right in quashing the second notification under section 6 on the ground of unreasonable delay in its issuance.
The respondent had not taken any such ground in the writ petition filed by him.
The High Court was, therefore, not justified in observing that 'the appellant had not explained the delay by filing any affidavit '.
We fail to appreciate that if there was no ground taken, there could be no occasion for filing of any such affidavit.
Further, the delay, if any, was of the respondent 's own making.
He had challenged the first notification under section 6, presumably on the ground that the acquisition being for a public purpose, could not be made at the expense of the second respondent.
The challenge was justified and the State Government, therefore, withdrew the first notification under section 6 without waiting for an order of the High Court.
The cancellation was in recognition of the invalidity of the notification.
The Government had no intention of withdrawing from the acquisition.
Thereafter, the Government issued a fresh notification under section 6 making a declaration for acquisition of the land for a public purpose at public expense.
There is nothing in the Act which precludes the Government from issuing a fresh notification under section 6, if the earlier notification is found to be ineffective.
The delay of one year and four months between the date of cancellation and the issue of the second notification cannot be regarded to be unreasonable, in the facts and circumstances of the case.
In somewhat similar circumstances, this Court recently in Gujarat State Transport Corpn.
vs Valji Mulji Soneji held the delay of about fifteen years in making the second notification under section 6 not to be unreasonable.
We cannot, therefore, uphold the High Court 's decision that the second notification must be struck down on the ground of delay.
In the result, the appeal succeeds and is allowed with costs, the judgment of the High Court is set aside, and the writ petition filed by the first respondent is dismissed.
Respondent No. 1 shall bear the costs.
N.K.A. Appeal allowed.

dataset_name: IN-Abs

summary:
The first respondent owned certain Land forming part of a town planning scheme, situated within the city limits.
At the request of the second respondent, a Corporative Housing Society, the State Government issued a Notification under section 4 of the Act on August 3, 1960 stating that the land was likely to be needed for a public purpose and it was followed by a further notification of the State Government under Section 6 of the Act dated August 21, 1961 that the land was to be acquired at the expense of the Cooperative Housing Society for the public purpose specified in column 4 of the Schedule to the notification.
The entire expense of the acquisition was to be borne by the second respondent.
The first respondent moved the High Court under Article 226 of the Constitution challenging the validity of the notification under section 6 of the Act.
During the pendency of the Writ Petition, the appellant by a notification dated May 27, 1963 cancelled the earlier notification under section 6 and issued a fresh notification.
The High Court struck down the second notification dated September 10, 1964 issued under section 6 of the Act.
In the appeal to this Court, on the question of the validity of the 2nd notification dated September 10, 1964. ^ HELD: (i) The High Court was in error in striking down the second notification under section 6 of the Act issued on September 10, 1964.
(ii) This Court in Valjibhai Muljibhai Soneji vs State of Bombay has held that the Government has no power to issue a notification for acquisition of land for a public purpose, where the compensation is to be entirely paid by a company.
[287 C D] In the instant case the first notification issued by the Government for acquisition of land for a public purpose at the expense of the second respondent, the cooperative society was therefore, invalid and the Govt.
was justified in issuing the second notification under section 6 after removing the lacuna by providing for acquisition of the land for public purpose, at public expense.
[287 D E] (iii) The acquisition of land for cooperative housing society is a public purpose.
The Govt.
is the best judge to determine whether the purpose in question is a public purpose or not.
It cannot be said that a Housing Scheme for a limited number of persons cannot be construed to be a public purpose.
When a notification under section 6 of the Act is invalid, the Govt.
may treat it as ineffective and issue a fresh notification under section 6 of the Act 2nd nothing in section 48 of the Act precludes the Government from doing so.
[291 C E] 285 Girdharilal Amratlal Shodan & Ors.
vs State of Gujarat Madhya Pradesh & Ors.
; , Pandit Jhandu Lal & Ors.
vs The State of Punjab & Ors. ; Ratilal Shankarbhai & Ors.
vs State of Gujarat & Ors.
A.I.R. , Ram Swarup vs The District Land Acquisition Officer, Aligarh & Ors. , referred to.
(iv) In the instant case, tho Respondent had not taken any ground in the Writ Petition with regard to the delay in the issuance of the second notification.
The High Court was therefore, not justified in observing that "the appellant had not explained the delay by filing any affidavit.
" If there was no ground taken, there could be no occasion for filing of any such affidavit.
[292 B C] (v) There is nothing in the Act which precludes the Govt.
from issuing a fresh notification under section 6 of the Act if the earlier notification is found to be ineffective.
The delay of one year and four months between the date of cancellation and the issue of the second notification cannot be regarded to be unreasonable.
[292 E F] Gujarat State Transport Corpn.
vs Valji Mulji Soneji


judgement:
Civil Appeal Nos.
1993 1994 or 1977.
Appeals by Special Leave from the Judgment and Order dated 22 3 77 of the Madras High Court in C.M.P. Nos.
3449 and 3563 of 1976.
M.R.M. Abdul Karim and section Shaukat Hussain for the Appellant.
A. K. Sen (In C.A. 1993), Mrs. Shyamala Pappu (C.A. 1994), and A. V. Rangam for the Respondent.
It is the art of the great either who with a line reveals infinity.
It is the art of the great dramatist who with a significant word shakes the soul.
Schiller, said Coleridge, burns a city to create his effect of terror: Shakespeare drops a handkerchief and freezes our blood.
For this exquisite reason, brevity is the soul of art and justicing including judgment writing, must practise the art of brevity, especially where no great issue of legal moment compels long exposition.
Therefore, we mean to be brief to the bare bones, with a few facts here and a brief expression of law there, by adopting the technique which "is simply the perfect economy of means to an end".
For another reason also the need for parsimony exists.
The court is in crisis, docket logged and fatigued.
A judgment can be brief but not a blank and there is no reason to repeat the details of a case where there is an exhaustive statement in the judgment under appeal, as in this case.
We adopt these long pages of judicial manuscript and abbreviate our conclusion in a few pages.
The appellant plaintiff, a woman was on terms of intimacy with the respondent defendant, a wealthy man who had enjoyed a long and intimate relationship with her.
The respondent owned a lovely mansion on the Marina in Madras which he agreed to sell to the appellant for a consideration of around Rs. 4 lakhs way back in April 1967.
This was subject to an equitable mortgage over the property in favour of the South Indian Bank, Coimbatore.
When the two separated litigation erupted.
A suit for specific performance of the agreement to sell was brought where both sides took up unrighteous positions, and 295 the trial court (the original side of the High Court of Madras) decreed the suit directing the plaintiff to deposit the mortgage amount plus Rs. 5,000 with interest at 11 per cent till the date of payment.
The whole consideration, except the mortgage amount and a sum of Rs. 5,000 had already been paid at the time of the agreement and possession had been made over to the plaintiff by the defendant.
The decree also provided that the amount should be deposited into court by the time specified therein, failure to do which would result in the suit itself being dismissed.
The amount was not deposited within the time limited but some months later the plaintiff paid the mortgage money to the mortgagee bank and took an assignment of its rights and got herself impleaded as second plaintiff in the suit which, by then, had been instituted by the bank against the present defendant (O.S. No. 154 of 1968).
Eventually, the mortgage suit resulted in a decree in favour of the present plaintiff (second plaintiff therein); and the amount now due has, by now, swollen to around Rs. 11 lakhs or so.
An appeal had been carried by the plaintiff appellant to a Division Bench of the High Court which rejected most of her contentions except one.
The court, while affirming that the direction to make a deposit into court within three months was valid, vacated the default clause, namely, the dismissal of the suit on non payment within the time.
Read in the light of Section 28 of the Specific Relief Act and the rulings on the point which were cited before us, the proper course in this situation was to pass a decree for specific performance, which would, for all practical purposes, be a preliminary decree.
The suit would continue and be under the control of the court until appropriate motion was made by either party for passing a final decree.
The plaintiff appellant moved the court by interlocutory applications for giving credit to the amount paid by her to the mortgagee bank and to pass a final decree in her favour.
That was not granted.
Various skirmishes, essentially of an interlocutory nature, took place.
Ultimately, on two applications, one by the plaintiff appellant and the other by the defendant respondent the court made a judgment which is the subject matter of this appeal.
The plaintiff 's application was dismissed and extension of time by way of adjustment of the mortgage amount paid was refused and a decree for recession of the contract for sale was passed and for delivery of possession with mesne profits.
It is perfectly open to the court in control of a suit for specific performance to extend the time for deposit, and this Court may do so even now to enable the plaintiff to get the advantage of the agreement to sell in her favour.
The disentitling circumstances relied upon by the defendant respondent are off set by the false pleas raised in the course of the 296 suit by him and rightly negatived.
Nor are we convinced that the application for consideration and extension of time cannot be read, as in substance it is, as a petition for more time to deposit.
Even so, specific performance is an equitable relief and he who seeks equity can be put on terms to ensure that equity is done to the opposite party even while granting the relief.
The final end of law is justice, and so the means to it too should be informed by equity.
That is why he who seeks equity shall do equity.
Here, the assignment of the mortgage is not a guideless discharge of the vendor 's debt as implied in the agreement to sell but a disingenuous disguise to arm herself with a mortgage decree to swallow up the property in case the specific performance litigation misfires.
To sterilise this decree is necessary equity to which the appellant must submit herself before she can enjoy the fruits of specific performance.
In the present case, with all that has been said by both sides and we have heard at great length arguments by Shri Abdul Karim for the appellant and Shri A. K. Sen and Smt.
Shyamala Pappu for the respondents it is clear that an opportunity for the appellant to deposit into court the amount directed by the trial court, together with interest down to date at 11 per cent., should be accorded.
We are not discussing the principles of law as they are well settled and do not require reiteration.
The equitable terms we have adverted to earlier must be remembered in this context.
The appellant who was bound to discharge the mortgage acted contrary to the agreement because, instead of paying the mortgage money and extinguishing the mortgage (which was, perhaps, a pardonable exercise, in lieu of deposit into court) she, under some ill advice took an assignment of the equitable mortgage with a view to using it against the respondent.
Surely, this was not consistent with the understanding assumed under the contract.
This justifies the view of the High Court that as a price for the indulgence of being allowed to deposit long after the due date was over the unrighteous advantage gained by taking an assignment of the mortgage should be nullified.
In brief, while the appellant may be allowed to deposit the amount due under the agreement, viz., Rs. 3,45,000 together with interest at 11 per cent.
from April 1967 upto date, the mortgage decree in her favour must be extinguished, save to the extent of the cash then paid.
The High Court expressed a slightly drastic though similar view, somewhat loosely, thus: After we have expressed our opinion and dictated this order, the learned counsel for the Plaintiff orally requests us to permit the Plaintiff to deposit the entire amount as directed by the learned trial Judge in the Court.
Having regard to the 297 fact that no such stand was taken at any earlier stage and this request has been orally made only after we have dictated this order, we do not see any justification whatever for complying with this request.
We may also point out that there is no actual undertaking given by the plaintiff herself that even if we give such an opportunity to the Plaintiff to deposit the sum of Rs. 3,45,000 into this Court now, she will give up her right under the mortgage decree, which she has obtained against the defendant in the present suit in O.S. No. 154 of 1968.
(emphasis added) We agree with the substance of this direction, but without going that far pass a conditional decree.
We should have taken long pages and elaborate argument in substantiation of the course we adopt, but for reasons adduced at the very beginning, we decline to do so.
We gather that in many jurisdictions the highest Court, which hears the arguments at enormous length and has the advantage of a complete statement of facts and discussion of law in the judgment under appeal, limits itself to a severe economy of words in the statement of its reasoning.
We regard this as a wholesome step.
Natural justice necessitates full hearing, not a flood of words of forbidding length.
We direct that a decree be passed that the plaintiff appellant do deposit within six months from to day the entire sum of Rs. 3,45,000 together with interest due upto date at the rate of 11 per cent.
, together with an undertaking that she would give up all her rights under the mortgage decree passed in her favour in O.S. No. 154 of 1968, except to the extent of the amount actually paid to the South Indian Bank for taking the assignment.
If these two conditions are fulfilled, the appeal will stand allowed and a final decree for specific performance passed.
In the event of non compliance with either of these conditions the appeal will stand dismissed with costs.

summary:
In 1967 the respondent agreed to sell his house to the appellant for a sum of Rs. 4 lakhs which then was subject to an equitable mortgage in favour of a bank.
The trial court decreed the suit for specific performance directing the plaintiff to deposit the mortgage amount within a specified time with interest at 11 per cent till the date of payment and that failure to pay the amount would result in the suit being dismissed.
At the time of the agreement the plaintiff paid the whole consideration except the mortgage amount and obtained possession of the house.
The plaintiff did not deposit the mortgage amount within the prescribed time.
She paid the mortgage money to the bank some months afterwards and took an assignment of its rights.
In the suit filed by the bank against the defendant she got herself impleaded as second plaintiff.
Eventually the mortgage suit resulted in a decree in favour of the appellant.
By this time the amount had swollen to Rs. 11 lakhs.
On appeal a division bench of the High Court vacated the default clause.
The plaintiff 's application for giving credit to the amount paid by her to the mortgage bank and to pass a final decree in her favour was not granted by the High Court.
The High Court ultimately passed a decree for recession of the contract for sale and for delivery of the possession with mesne profits.
^ HELD: The High Court should pass a decree that the plaintiff appellant should deposit within six months the entire consideration together with interest due upto date at the rate of 11 per cent together with an undertaking that she would give up all her rights under the mortgage decree passed by the High Court, except to the extent of the amount actually paid to the bank for taking the assignment.
[297 E] It is open to the court in control of a suit for specific performance to extend the time for deposit and this Court may do so even now to enable the plaintiff to get the advantage of the agreement to sell in her favour.
The disentitling circumstances relied upon by the defendant are offset by the false pleas raised in the course of the suit by him and rightly negatived.
Specific performance is an equitable relief and he who seeks equity can be put on terms to ensure that equity is done to the opposite party even while granting the relief.
[295 H] In the instant case the assignment of the mortgage is not a guileless discharge of the vendor 's debt as implied in the agreement to sell but a disingenuous disguise to arm herself with a mortgage decree to swallow up the property in case the specific performance litigation fails.
The appellant acted contrary to the agreement because instead of paying the mortgage money and extinguishing the mortgage she took an assignment of the equitable mortgage with a view 294 to use it against the respondent.
This was not consistent with the understanding assumed under the contract.
[296 C]