LexSTATE OF GUJARAT & ANOTHER versus SANKALCHAND KHODIDAS PATEL
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A B c D E F G H 178 STATE OF GUJARAT & ANOTHER v. SANKALCHAND KHODIDAS PATEL (DEAD) BY L.Rs. November 9. 1977 [N. L, UNTWALIA AND P. N. SHINGHAL, J.J Land Acquisition Act 1894-Section 4 and 6-Public purpose-Abandon- n1ent of intention to con'tribute part of the compensation to be awarded- Whetlter lligh Court in first appeal by deciding a question without any pleading and issue can set aside the judgment of trial court. The State of Gujarat issued a notification under s. 4 of the Land Acquisition Act on 23-5-1958. The public purpose mentioned was for the construction of houses for co-operative society. An erratum was issued pointing out that the Co-operative Society was of the backward class people. Thereafter. notifica- tion under s. 6 was issued on 13-8-1960 in which also it was declared that the land was required for the public purpose of providing housing facilities for the backward class peop1e. The respondent filed a suit on 8-2-1961, challenging the validity of the notification under s. 4 and 6 and praying for perpetual injunction. The City Civil Court dismissed the suit. The High Court, however, allo\ved the respondent's appeal on the ground that the acquisition was not for a public purpose within the meaning of s. 6 of the Act as the intention declared by the Government to pay the amount of subsidy in respect of the acquisition \Vas, by r.ecc~sary implication, abandoned. Allowing the appeal by certificate, HELD : ( 1) Before the trial court no plea was taken that the appellant abandoned its intention to pay part of the compensation to be awarded for the acquisition. It was therefore not permissible for the High Court to decide the controversy on a plea which was not taken at all and which was not the subject matter of any issue at the trial. In fact the six contentions raised before ihe High Court also· did DOit include the question of abandonment. The High Court therefore committed an error of law in deciding the· appeal on the finding of ;:ibandonment of the origirlal intention of the St.ate Government to pay a part of the compensation. Even otherwise there \Vas no real basis for the High c·ourt 's finding about the abandonment of the intention of the State Government to pay a part of the compensation. [180 B-D] (2) The High Court committed obvious error of law in arriving at its finding and its finding of fact could not be sustained, [180 D] (3) The High Court was wrong in relying on the non-publication of the award because, as early as 1961, the respondent had filed a suit and an order was made by the trial, court restraining the appellants from disturbing and obstru·cting the possession of the respondent. The evidence clearly showed that the State Government had taken a clear decision to pay a part of the compen- sation for the cost of acquisition. The fact that the State had preferred the present ap~real clearly showed that it had not abandoned its intention to make the acquisition on payment of a part of the compensation out of public revenue. [180 F-G, 182 D-E] CIVIL APPELLATE JURISDICTION : Civil Appeal No. 177 of 1973. From the fi.Jdgment and Decree tiated the 17th/18th February l 972 of the Gujarat High Court in First Appeal No. 275 of 1966. S. T: Desai, P. H. Parekh and M. N. Shroff for the Appellants. D. V. Patel, Vasuben P. Shah, S. K. Dholdkia and Raju Rama- chandran for the Respondents. Hamid Kureshi for the Intervenet GUJARAT v. s. K. PATEL (Shinghal, J.) I 79 The Judgment of the Court was delivered by SHINGHAL J.,-This is an appeal by the defendant State of Gujarat ;and another against the appellate judgment and decree of the Gujarat High Court dited February 17 /18, 1972, on a certificate under Arti- -cle 33(1) (b} of the Constitution as it stood before the Constitution (Thirtieth Amendment) Act, 1972. The case arose on a suit instituted by the plaintiff Sankalchand Khodidas Patel on February 8, 1961, to challenge the validity of the notillcations issued by the defendant-State under section 4 and 6 of the Land Acquisition Act, 1894 (hereinafter referred to as the Act) in respect of land bearing survey number 146, in Dariapur- Kazipur .area of Ahmedabad City. The notification. under section 4 was issued 011 May 23, 1958, in respect of 1 acre 36 gunthas of land. It was ·stated in the notification that the land was likely to be needed for a "public purpose, viz., for the construction of houses for New S
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